Criminal Law

Mary Fan

The memory seems almost quaint.  While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones.  Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports.  Part of this talent came from the wisdom and judgment honed by experience.

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

The future is unfolding now, her article suggests.  Proposals such as a biometric national ID are just ideas now, she notes.  But in myriad ways, methods and modes of identification are developing toward such a future.  Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future.  Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.

There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power. ¹ Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle.  Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.

What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges.  Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.

Hu’s work also is valuable in its special attention to the deployment of controversial identity tracking and verification methods in the immigration context.  The population at large might resist what Hu terms “biometric ID cybersurveillance” to encompass burgeoning government databases and more sophisticated modes of technology-aided identification.  So start with people designated as aliens.  Attentiveness to identity surveillance in the immigration context is thus helpful for understanding where and what controversial practices may take root more generally.

1. For just a few great examples, see. e.g., Anita Allen, Unpopular Privacy: What Must We Hide? (2011); Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (2011); Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008); A. Michael Froomkin, The Death of Privacy?,52 Stan. L. Rev. 1462 (2000); Robert Mikos, Can the States Keep Secrets from the Federal Government?, U. Pa. L. Rev. 103 (2012); Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011); Paul Ohm, Probably Probable Cause: The Diminishing Importance of Justification Standards, 94 Minn. L. Rev. 1514 (2010). [↩]
   

Susan Bandes

The question of how it feels to do the work we do receives little attention in mainstream legal literature.  We tend to treat the very acknowledgement of our work’s emotional aspects as downright unlawyerlike — a challenge to law’s rational and rigorous essence. Yet as this book beautifully illustrates, the question of how it feels to do our work cannot be cordoned off from the issues at the center of the teaching and practice of law: what it means to be an ethical, zealous, effective counselor and advocate with a satisfying, sustainable legal career.

Susannah Sheffer sheds light on all these issues, though she sets out to answer a narrower question: what it is like to be a capital defense lawyer specializing in post-conviction challenges.  What is it like for these lawyers, she asks, not in the courtroom or the offices of the capital habeas unit, but “in the middle of the night, in the pit of the stomach, in their last visits or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?” What is it like to do this work in the face of incomprehension and even hostility from the larger community? What motivates such lawyers and how do they keep doing what they do? Shaffer explores these issues in conversations with twenty capital defense lawyers in this insightful and deeply affecting book.

There have been some terrific books written about capital lawyering — books on the craft (such as Welsh White’s Litigating in the Shadow of Death), accounts of particular cases (such as John Tucker’s May God Have Mercy), memoirs by capital lawyers (such as David Dow’s The Autobiography of an Execution and my colleague Andrea Lyon’s Angel of Death Row).  Sheffer comes at this topic from a unique angle, and her approach yields unique rewards. As she describes, she has been immersed over the years in other “what is it like” explorations involving the criminal justice system and violent loss, most recently as project director and staff writer for Murder Victims’ Families for Human Rights.  She is a gifted interviewer; one of her achievements here is her ability to create relationships of trust with lawyers who are unused to exploring the emotional aspects of their work and reluctant to make themselves the central topic of conversation.  She is also a lucid and lyrical writer. The resulting conversations, woven into a compelling narrative, are searching and thought-provoking. They provide insights into the emotional aspects of lawyering that I have found nowhere else.

The book is organized topically; it explores the motivations for becoming a capital defense attorney, the responsibility (the sense of “it’s on me to stop this execution”), the emotional impact of the work on the lawyer, the culture of not talking about this emotional impact, the relationship with the client (the complex tasks of keeping hope alive, giving realistic counsel, and maintaining trust), the emotional dynamics of fighting against overwhelming odds, the complicated notion of a “victory” in the post-conviction context, and two final chapters on getting out of the work and staying in.

Some of the questions explored are unique to capital defense law: how to talk to a client who is about to walk into the death chamber, whether to attend the execution of a client, how to go on to the next case after yet another client is executed, how to find work-life balance when you are the last barrier between your client and the death chamber.  In one lawyer’s haunting phrase, “Our clients can’t afford for us to be finite, or frail, or tired.”

In the concluding chapters, Sheffer and her interviewees meditate on whether the support and camaraderie of those in the field is enough, or whether there should be more institutionalized mechanisms for dealing with the pain, trauma and other emotional challenges of the work.  Although it is not discussed explicitly, Shaffer briefly raises a more basic question at the close of her book — what it means to impose a penalty that requires people to drive themselves to try to be infallible; to carry this sort of weight. As she says, the death penalty is “something we decide to do.” For that reason, “its impact deserves our fullest attention.”

Thus this is a book about capital punishment, but it is about lawyering in broader contexts as well.  I will highlight just a few of the issues on which this book sheds new light — issues whose cognitive dimensions have been discussed many times, but too often without attention to the affective dimension. One is the issue of “cause lawyering” and why lawyers choose to do it. These conversations capture the complex blend and broad sweep of emotional and intellectual motivations with satisfying nuance.  Another is the question of role differentiation (how do we represent people who have done terrible things?). As I’ve argued, this is not a complicated ethical issue, but it is a difficult emotional issue.  The book contains searching discussions of the lawyers’ loyalty to and empathy toward their clients, their mindfulness of the pain their clients have inflicted (the post-conviction lawyers in these pages rarely mention actual innocence claims), and the challenges of feeling both at the same time. Finally, there is the implicit question at the heart of this book:  What would we gain, for ourselves, for our profession, for our system of justice, if we recast the emotional aspects of lawyering as an integral part of lawyering discourse?

Jennifer Chacon

The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between.  For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism.  In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework.  In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.

Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.”  Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments.  First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions.  Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control.  Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention.  Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement.  Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature.  He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter.

In Part II of the article, Sklansky introduces his concept of “ad hoc instrumentalism.”  He defines the concept as thinking about “legal rules and legal procedures simply as a set of interchangeable tools. In any given situation, faced with any given problem, officials are encouraged to use whichever tools are most effective against the person or persons causing the problem.”  Sklansky argues that this is a developing trend in law and legal institutions that is not limited to the criminal/immigration merger, but that does help to explain an important aspect of that merger.  In the paper, he points to national security and parole as two areas characterized by ad hoc instrumentalism.  Sklansky notes that ad hoc instrumentalist policies can be efficient and pragmatic, but that they also have weaknesses.

Part III of Sklansky’s article focuses on these weaknesses and elaborates on the particular problems that emerge in the context of the criminal/immigration merger.  In particular, he cites concerns that ad hoc instrumentalist approaches weaken the rule of law and create accountability problems.  And while he concludes that rule of law concerns generated by such policies ultimately are somewhat amorphous, accountability concerns provide a powerful critique of ad hoc instrumentalism – both in general and in the context of the criminal/immigration merger in particular.

Sklansky depicts in some detail the ways in which enforcement policies developed around criminal/immigration enforcement generate serious accountability problems, obfuscating the origins of rights violations and obscuring the sources of potential remedies.  In his view, the general accountability concerns created by ad hoc instrumentalism are exacerbated in the context of the criminal/immigration merger “by two other features of our newly merged system of immigration enforcement and criminal justice: its bureaucratic opacity and its selective application.”

Sklansky’s theoretical framework contributes to a better understanding of the dynamic at work in the merger of immigration and criminal law. His efforts to explore the parallels to the parole system, for example, provide a very useful way to refine existing thinking about the problems and concerns raised by this merger. And by pointing out what makes the criminal/immigration merger different – and perhaps more problematic – than other domains of ad hoc instrumentalism, he also contributes in important ways to the existing literature concerning “crimmigration.”

In attempting to diagnose just what is wrong with the criminal/immigration merger, Sklansky gets at issues that have been a constant source of struggle in my own work. Why is this a problem? Why does it bother me? Is the system unjust? For example, in my articles Whose Community Shield? and Managing Migration Through Crime,  I attempt to give some explanation of what is troubling about current trends.  I focus largely on rule of law concerns.  But I freely admit that I had persistent difficulty articulating theoretical objections that adequately captured my concerns. David Sklansky offers a coherent and plausible theory of the problem, and in so doing enhances the ongoing debate around these issues.

Ultimately, I am not sure that I have as much faith as Professor Sklansky in the power of greater transparency to alleviate the harms that he has diagnosed — both because there is a significant democracy deficit in the formulation of immigration policy (given the non-voting status of the population upon which immigration law is imposed), and because I am perhaps far more pessimistic than the author “that making matters more accountable could wind up making them uglier” given the pervasive, and often racist, anti-immigrant sentiment evident in popular discourse. That said, I deeply appreciate his efforts to put his finger on what is going wrong here and how we might hope to see it made right.

John Hursh

As his title suggests, Professor Michael J. Kelly offers a sound legal argument for prosecuting corporations for genocide under international law.  While there is much to admire about this article, perhaps its greatest strength is the straightforward manner in which Kelly systematically refutes possible challenges to his position and the even-handed tone Kelly employs when discussing the often divisive topic of corporate regulation.  Rather than resorting to polemics or incendiary rhetoric, Kelly begins with the basic premise that “anyone who commits genocide should be held accountable” (339).  Noting that international law holds individuals, states, and organizations accountable for genocide, Kelly asks simply: “Why not corporations” (339)?

Kelly grounds much of his argument for prosecuting corporations for genocide on the lack of distinction between a legal and natural person in the 1948 Genocide Convention (339).  Applying the interpretative framework set forth in the Vienna Convention on the Law of Treaties, Kelly moves from the treaty text to the travaux preparatoires, where he finds no definitive evidence that delegates intended to include or exclude corporations from the treaty’s reach.  Still, citing the “plain meaning of the term ‘persons’ at the time” and the drafters’ decision not to delineate between legal and natural persons, Kelly argues that corporations should be considered persons under the convention (346).  He bolsters this argument by noting an accordant view from Harold Koh, Legal Advisor to the U.S. Department of State, and by appealing to our basic sense of fairness to recognize that the unprecedented growth and influence of corporations requires a similar level of responsibility (347).

Kelly uses the bulk of his article to refute challenges to his position that corporations can and should be held criminally responsible for genocide under existing international law.  He demonstrates that corporations are subjects of international law (343–45), subject to the Genocide Convention (345–47), and can form the requisite intent necessary to support a charge of genocide (357–61).  Kelly also discusses the application of vicarious criminal liability to corporations in relation to a charge of genocide, focusing on the doctrine of command responsibility (348–56) and to a lessor extent respondeat superior (356–57).  Finding command responsibility to be the most established doctrine of vicarious criminal liability, Kelly concludes that this doctrine “holds the most promise for application to corporations under international law” (348).  This is a key point.  Providing complicit or indirect support to actors engaged in genocide or other atrocities deserves prosecution and punishment just as much as active participation.  Kelly simply asks that corporations be held accountable for such actions (349).

What is perhaps most distressing about the lack of meaningful corporate regulation is the striking disproportionality of increased corporate rights compared to corporate responsibilities.  Kelly rightly criticizes this disproportionality, noting corporations enjoy significantly increased rights—most recently freedom of speech (340, citing Citizens United vs. FEC, 558 U.S. 50 (2010))—and staggering economic clout (341).  Corporations, however, are not subject to anything near a corresponding level of responsibility (340–41).  Such an imbalance requires correction.  But, as Kelly notes, while many commentators recognize the need for a recalibration of corporate rights and responsibilities, the law has not met this challenge: “As the relative economic and political power of corporations expands, there is increasing recognition that corporations should bear greater responsibility for their actions; however, the law has yet to evolve in this direction” (341).

Going to such lengths to demonstrate that corporations can and should be held legally accountable for genocide is both necessary and absurd.  It is necessary because of the legal and political climate that largely excuses corporate crime and malfeasance.  It is absurd because arguing that legal fictions such as a corporate shell and veil effectively shield an organization from prosecution for the crime of crimes is nonsensical and callous.  Here, Kelly rightfully criticizes the legal academy for failing to address the role of corporations in genocide, atrocities, and other human rights violations.  “‘No one seems to know what to do about it.  It almost seems as through a certain level of corporate crime is just assumed as a real-life ‘cost of doing business’” (342, citing Robert A.G. Monks & Nell Minow, Corporate Governance 29 (4th ed. 2008).  Such a view exemplifies a failure to do justice.  The cost of doing business cannot include excusing criminal actions.  Moreover, given the economic and political power of corporations, ending corporate impunity is every bit as necessary as ending state impunity to achieve a truly just global order.

Although well-reasoned and engaging, Kelly’s article does contain one shortcoming.  While genocide is a prosecutable crime before the International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and Extraordinary Chambers in the Courts of Cambodia, none of these judicial organs have jurisdiction over legal persons.  Kelly’s argument relies heavily on the non-delineation of legal and natural persons within the Genocide Convention and the inability to prosecute legal persons significantly undermines his position.  While Kelly finds that “this situation can be easily remedied” (362) and notes former ICC Chief Prosecutor Luis Moreno Ocampo’s support for holding corporations accountable for genocide as a counterpoint (362), these remarks do not address this issue in an entirely satisfactory manner.

Kelly’s remedy is to ask the United Nations General Assembly to seek an advisory opinion from the International Court of Justice to resolve the matter.  While this solution is eminently reasonable, it does not address the current inability of international criminal courts and tribunals to prosecute corporations.  Although problematic, this point is hardly fatal to Kelly’s argument.  As he notes, despite the jurisdictional limitations of the ICC and the ad hoc tribunals, international law certainly does not preclude the prosecution of corporations for genocide (365).  In addition, domestic courts may also allow for such prosecutions.  Since the prevention and prosecution of genocide constitutes a jus cogens norm, any state may prosecute a corporation for genocide if the relevant legal system can hold corporations criminally liable.  Here, Kelly points to Canada’s Crimes Against Humanity and War Crimes Act as the best example (365).  Admittedly, such prosecutions are likely to be uncommon, but it is important to realize that prosecuting corporations for genocide is possible under existing international and domestic law.

Professor Kelly’s article deserves serious attention from the international criminal law community specifically and international legal scholars and practitioners broadly.  As he makes clear, prosecuting corporations for genocide is hardly a radical legal tactic.  Rather, it is a logical step supported by the development of modern international criminal jurisprudence beginning with the International Military Tribunal at Nuremberg, the International Military Tribunal for the Far East, and the war crime trials that followed World War II (352–53), and continuing through the ICTY, ICTR, and the ICC (358–60).  Kelly concludes by noting that corporations have received “vast latitude” to “pursue profits and increase trade,” which has benefited “people all over the world” (367), but that “darker chapters have also emerged in this larger success story” (367).  Holding corporations accountable for these darker chapters—particularly genocide—is necessary if we are to do justice in a meaningful sense.  This article offers an insightful and pragmatic first step in finding a reasonable balance between corporate rights and corporate responsibilities and in addressing these darker chapters.

Jonathan Simon

Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead.  Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20^th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights.  A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state.  Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.

Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state.  Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present.  Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.

For much of the period between the Revolution and the middle of the 20^th century, the meaning of dignity was confined largely to the first category, “institutional status as dignity.”  Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status.  The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts.  This began to change in the 20^th century, and the change accelerated significantly after World War II.

From this perspective we can see today’s dignity tsunami and the prospects of a dignity-based reform of the penal state as a second phase of a process that began in the 1940s and reached the completion of its first phase in the 1970s.  Much of this first wave in US constitutional law took place during the Warren Court and the first (and more liberal) part of the Burger Court.  Professor Henry argues that dignity then went into a “period of hibernation during the Burger and Rehnquist Courts.” The second wave that is emerging today during the Roberts Court reflects a significant shift in the kind of dignity being emphasized.

The most recent cases reflect what Henry describes as “personal integrity as dignity.” This line also has origins in classical thought such as Aristotle’s virtue ethics, and has contemporary expounders of “capabilities theory” like philosopher Martha Nussbaum. At its core, dignity as integrity names human excellence as expressed through the virtuousness of particular actors in conditions of great adversity, but also negatively at moments when “people who become vulnerable to their circumstances, express unharnessed appetites, and expose their bodily nakedness or mental fragility.”  This means that every person, as a human, is capable of expressing human excellence or virtue in the most exalted forms, even in bearing the quotidian burdens of life and death.

Henry’s “dignity as personal integrity” offers the most exciting foundation for a renewed constitutional attack on America’s penal state in half a century. Recognition of this dignity means that people should be protected against those actions which would fatefully compromise this capacity, or “disintegrate” them, (to take up Professor Henry’s artful term).  Typically, these actions are ones taken by the police and prison state.  For example, in a Fourth Amendment case, Michigan v. Hudson, Justice Scalia (in an opinion for the Court) explained the constitutional significance of the common law “knock and announce” rule (by which police must announce themselves and seek entry even when lawfully entitled to enter, before forcefully entering absent exigent circumstances) in terms that describe this kind of dignity rather precisely as protecting the individual’s dignity by affording “the opportunity to collect oneself before answering the door.”

Professor Henry suggests that recent cases also sound in a fifth sense of dignity, “dignity as collective virtue,” that is the collective side of “dignity as personal integrity.”  Those exercises of power, or even individual choices, that would risk the disintegration of a person (and thus the loss of their dignity as personal integrity) would conversely expose the collective or community imposing or permitting that loss to the judgment of being indecent, inhuman, or uncivilized.  This notion of dignity has been visible in a series of recent 8^th Amendment decisions in which the Court has ruled out certain punishments for juveniles, including the death penalty and life imprisonment without parole for a non-homicide crime,. Perhaps the most significant recent invocation of this notion of dignity as decency is the Brown v. Plata decision finding that California’s chronically overcrowded and medically under-resourced prisons had created a risk of suffering equivalent to torture, one which was “incompatible with the concept of human dignity and has no place in a civilized society,” and ordering the virtual end of mass incarceration policies in the state that helped launch mass incarceration.

Myrna Raeder

When we think of the carceral state, girls do not immediately come to mind. While the function of the juvenile justice system is ostensibly rehabilitation rather than punishment, and juveniles are detained not incarcerated, such differences are often illusory to those in the system. But even when we think of juveniles, our first image is likely to be of boys, many of whom were once cavalierly referred to as “super predators” whose perceived violence caused a shift to more punitive juvenile justice policies, including routine transfer of youths to adult courts. While we can debate how much of this image is a false characterization, it has drowned out the presence of girls in the system, except to the extent that they, too, are portrayed as violent gang members.

Francine Sherman is one of the few legal scholars who studies the plight of juvenile girls. An earlier article of hers written with Marsha Levick of the Juvenile Law Center, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 Wis. Women’s L.J. 9 (2003), is still the go-to analysis for supporting the use of gender responsive programming for both girls and adult women offenders. Her current article presents a retrospective of how girls have fared during the last 40 years of evolving juvenile justice policy and includes suggestions about new directions that would benefit this growing but ignored population. Justice For Girls is a significant article that is even better on second reading. Not only does it precisely capture the reasons underlying current policies and make practical recommendations, but it also investigates the difficulties inherent in applying the concept of data-driven research to programming for girls, an issue that has general application for evaluating the much larger universe of adult correctional programs and practices.

Professor Sherman traces juvenile policies aimed at controlling girls’ sexuality, which were first directed at immigrants, and then at girls who were turned into delinquents for being “chronically disobedient.” By the late 1970s “incorrigible” children in need of supervision were overwhelmingly female, with girls comprising 70% of status offenders whose transgressions consisted of acts such as truancy or running away that would not be a crime if committed by an adult. Many girls have continued to run away, some because they are being physically or sexually abused at home or in their placements. Indeed, 75% of runaways are girls, and most have been in multiple placements. Their boots to the ground often lead to contempt rulings, probation violations, and placements in secure detention. Advocates fought hard to prohibit this result when the Juvenile Justice and Delinquency Prevention Act (JJDPA) came up for reauthorization in 2008, but the Act has been interminably stalled by Congressional gridlock. Ironically, the girls we detain for leaving home because they have been subjected to violence often become the women who prosecutors exhort to leave their abusers.

The girls who have caught the media’s current attention are violent gang members, a fact that may help to explain why juvenile girls have increased from 20% to nearly 30% of all juvenile court referrals, which also resulted in an absolute increase in their numbers at the same time the total number of youths entering the juvenile justice system has declined. However, girl perpetrated gang violence is the only noticeable category of female violence not discussed in the article, even though such conduct raises gender issues ranging from gang rape as the price of initiation to the often subservient roles of girls in gang activities including providing sex to gang members and acting as lookouts. Professor Sherman does explain that studies now demonstrate that no fundamental change in female aggression has occurred despite the fact that assaults by girls have skyrocketed. Instead, much of the increase is due to the recharacterization of fights between mothers and daughters, “mean girl” behavior commonly associated with teenage girls, and changed law enforcement practice which makes it more likely that fighting at home will be treated as domestic violence that when reported triggers mandatory arrest. In other words, while referrals to the juvenile justice system for simple assaults by girls have risen dramatically, felony assaults and homicides have not. Unfortunately, such criminalization of acts that would have previously not resulted in delinquency referrals may also produce collateral consequences that are likely to impede the productive transition of girls to adulthood. Sherman would exclude cases of intrafamily violence by minors from domestic violence assaults and batteries and provide better services to youths in chaotic families.

The article provides an excellent summary of recent trends in handling juvenile prostitution, a crime where girls predominate. In the past decade, more attention has been given to treating girls as victims of commercial sexual exploitation. The Trafficking Victims Protection Act (TVPA) defines minors as victims, not criminals, and states have started to pass safe harbor laws which provide alternatives for minors to avoid criminal prosecution. Sherman recommends decriminalization of prostitution for minors, which would significantly reduce the female delinquent population.

She also discusses the important role of gender responsive programming in serving girls despite the fact that it has never been required by federal legislation. Simply “painting it pink is not enough.” Gender responsiveness requires positive efforts to deal with the traumas that many girls have experienced, their developmental characteristics, and their circumstances to meet the goals of promoting safety, healthy relationships and better assessing the strengths and needs of girls. While gender responsive programs promise real advantages to girls, they have not been consistently pursued. Moreover, Sherman explains that information about child development has only recently been integrated into juvenile justice theory, stemming primarily from Supreme Court decisions regarding the death penalty and Life Without Parole (LWOP) for youth less than 18 years old. In 2004, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) recognized that more attention was necessary to provide appropriate services for girls and established a Girls Study Group, and more recently a National Girls Initiative.

Professor Sherman is concerned that implicit bias hinders fairness for girls, since they have typically been treated as an afterthought in juvenile justice policy, where gender neutrality may actually mask gender disparity. She also refers to the intersectionality literature, which reminds us of the intersection of race and gender in decision-making at each point in the juvenile justice system that results in girls of color being detained for minor conduct that would not result in detention for boys or white girls. In fact, one study reported black girls were 12% of the population, but 74% of girls’ detentions. More generally, Sherman suggests that data is not consistently being used to consider disparate impact concerning juvenile girls when compared to boys. The data that does exist concerning girls reveals that 90% of detained girls were not confined for new crimes, but for probation violations, and that a majority of girls were serving probation for misdemeanors or status offenses. This bespeaks a system that is neither serving girls nor the public. In response to this information, one jurisdiction eliminated probation for status offenders and reduced probation for misdemeanants, which drastically cut secure detention for girls. Sherman suggests that data should be collected that identifies gender, racial and ethnic information to better evaluate the fairness of the juvenile justice system. However, progress is slow and the Girls Study Group found that only 11 of an available 35 risk instruments for evaluating girls warranted a “favorable” rating in considering gender responsiveness. Moreover, Sherman critiques a case which rejected New York’s attempt to treat gender as a positive factor because girls have lower recidivism than boys. It has always struck me as disingenuous to ignore that so-called gender neutral juvenile detention and adult incarceration policies are based on a male model, and then complain when female oriented practices and programs are suggested that they are stereotypical or violate equal protection.

The final section of the article cautions that a requirement that programs must be vetted to demonstrate that they satisfy Evidence Based Practice (EBP) can stifle the creation of innovative gender responsive and culturally sensitive programs, since the criteria for assessing the validity of evidence based programs may be overly rigid or unrealistic and grants for small programs do not include money for contemporary evaluation. EBP originated in the medical field, spread like wildfire to other disciplines and is now entrenched in criminal justice analysis, where it requires empirical research supporting positive outcomes for programs and practices. While the goal of EBP is admirable, because it makes no sense to keep recycling programs that do not work, its varying definitions and retrospective application raise a number of issues about whether EBP will cause the baby to be thrown out with the bath water. Her critique of EBP as a means of rejecting girls’ programming should resonate throughout the entire correctional field, and has particular relevance to gender responsive programming of adult as well as juvenile females. For example, most mother-child programs are quite small and experimental. If states won’t fund new programs because they are not evidence based, we will be condemned to refining programs that have not been designed for underserved small groups whether male or female. One size does not fit all in creating effective programs and practices for offenders, and it is an added bonus that Justice for Girls has broader application to adults.

Kimberly Ferzan

I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida.  One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere.  Reading Victor Tadros’ The Ends of Harm made me feel like that kid again.  Here are three reasons why.

First of all, the thesis upends much of our thinking about the justification for punishment.   Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish.  (There is, by the way, no definition of retributivism that is not somewhat contentious these days.)  He then turns to an unusual defense of general deterrence.  He believes that the justification for the criminal law should be that it prevents harm.  However, he also takes seriously the deontological constraint that we cannot use people as “mere means.”  This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons.  If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done.  Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes.  The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence.

The duty view goes something like this.  Kim decides that she wants to kill Victor so she rolls a boulder down a hill at him.  Because she did something she should not have done, she now has a duty to stop the boulder, a duty that might include throwing herself in the boulder’s path.  And others may force Kim to do her duty by pushing her in front of the boulder.  Finally, if the boulder hits Victor and breaks two of his legs, Kim has a duty to rectify the harm, and says Tadros, this duty is not just the amount necessary to compensate for the harm caused, but rather the duty is as large in scope as the duty Kim would have had to suffer harm to prevent the harm to Victor in the first place.  With this basic structure in place, Tadros makes further moves to explain why Kim and Kelsy might exchange duties owed to Victor and Vera, why the rectificatory duty should be understood as a duty of protection, and why the state is best situated to be in the midst of this duty of protection swap that now becomes a deterrent-based criminal system.  I have my doubts about whether the Tadros’ attack on retributivism is fatal and about whether his duty view is successful, but the originality of this work bears a close read for anyone interested in criminal law theory, irrespective of whether you find the central thesis persuasive.

Second, this book has an abundance of arguments.  No review, nor any combination of reviews, will do justice to the dizzying number of arguments that this book contains.  Retributivism, self-defense, duties, the means principle, and the role of the state may be the headliners, but there are many, many supporting arguments in this book.  For example, in the midst of a discussion about self-defense and the role of causation, Tadros finds it necessary to detour into the relationship between corrective and distributive justice, concluding that our duty to compensate for harms we cause is greater than our duty to rescue (or otherwise redistribute our resources).  Tadros concludes that “causation is morally basic” (p. 186), and with this conclusion in hand, he returns to his analysis of how much we may harm individuals to avert harms that they will otherwise cause.  Tadros has never met an issue he did not address head on.  This is highly commendable, as he doesn’t shirk from difficult side issues, but it means that the reader is going to need to be on her game at all times to be able to work through the intricacies.

Third, this book is playful.  It may not have lions, and tigers, and bears (oh my!), but it is full of boulders, and sharks, and claw hammers, and bears (oh my!).  These hypotheticals are all deployed for highly nuanced theoretical moves; they have real work to do.  Tadros defends his methodology early on, maintaining that such hypotheticals allow him to weed out other distractions.  Nevertheless, there will definitely be those readers who find that Tadros’ imaginative hypotheticals are too imaginative and too hypothetical, but there is a pure joy to the argument that comes through loud and clear.

But for all that Tadros’ book presents unexpected arguments and intricate obstacles, in closing I should note that there is one important way in which this book bears no resemblance to a ride at Disney World.  Some potential readers may eschew this book because it is too philosophical, too hypothetical driven, too intuition reliant, and in many ways, too unworldly.  But make no mistake about it, Tadros did not write this book to design a ride at an amusement park.  As he revealed in personal conversations, Tadros started this book as a book on retributivism, and when he began writing, he visited a prison.  And, seeing that stark, desolate, and sobering institution, Tadros sought to write a book that could justify to the incarcerated the suffering we impose on them.  Tadros has put his agile, analytical mind to work to solve a problem that should be of central concern to all of us.  And in that spirit, his work should be read and celebrated.

Angela Harris

Imagine an interrogation chamber, twenty-five years from now. Rather than a dungeon or a prison cell, this space resembles the radiology suite of a hospital. A detainee is strapped to a gurney, electrodes attached to strategic parts of his body, rolled into a functional magnetic resonance imaging (fMRI) scanner, and there held immobile for the duration of the interrogation. Whenever he refuses to answer a question or gives an answer believed to be untruthful or incomplete, the detainee receives an electric shock. As the interrogation intensifies, so does the pain. Suddenly, however, the interrogation stops. The signal has been given from the observation room that the subject’s pain level has reached the threshold for “torture” established by the Geneva Convention.

What does it mean for criminal law, and for international humanitarian law, that we can see and measure the pain of others?

More generally, to what extent can scientific discoveries and technological advances solve (or dissolve) pressing moral debates?

The issue is so central to our intellectual lives today that it’s become recursive, being staged at various levels of scale. At the level of world views, we have in this corner Team Atheism (usually brandishing the banner of science), and in that corner, Team Religion. At the level of institutional survival, it’s about science, engineering, and the professional schools against the humanities. At the level of disciplines, we’ve had attempted beat-downs between physics and philosophy. Within philosophy (which is sharing territory these days with computational science), we have the mind-body problem and the Turing Test challenge. And at the level at which Amanda Pustilnik enters, we see Neuroscience squaring off against Ethics on the playing field of law.

As Pustilnik explains, advances in neuroimaging techniques, including the fMRI and the positron emission tomography (PET) scan, have made pain objective, rendering obsolete Elaine Scarry’s famous declaration that pain is simultaneously the thing most existentially real (to the sufferer) and most existentially in doubt (to the observer). Observers can now look at the various areas of the brain activated by acute pain and tell, with relative certainty, whether the subject is experiencing pain or not. If fMRI measurements are repeated over time with various levels of stimulus, it should also be possible to tell what degree of pain the subject is experiencing.

These developments could, in theory, revolutionize a number of areas of law and policy. Pustilnik discusses two. First, in many states, homicide by means of “torture” – usually defined as the intentional infliction of “extreme” pain — is one basis for a first-degree murder charge. Could a defense attorney someday submit evidence that the pain caused the victim was not “extreme” enough to constitute torture? Could a prosecutor respond with fMRI evidence about the kind of pain experienced by the average (reasonable?) person in the defendant’s situation?

Second, Pustilnik suggests that neuroscientific evidence could be mobilized in order to draw the line between permissible and impermissible interrogation techniques. Many efforts to define torture in international conventions – as well as, Pustilnik notes, the infamous Bybee Memo justifying torture by U.S. officials in the detention center in Guantanamo Bay – turn on degrees of pain inflicted. Could science help set an objective standard for nations and their interrogators to abide by?

Ethicists fearing future unemployment will breathe a sigh of relief that Pustilnik’s answer is “no.” What’s so satisfying about her argument, however, is not her conclusion that ethics still matter, but the way in which Pustilnik uses these neuroscientific advances as a way to explore the moral import of pain and, more generally, the significance of the body to moral and ethical judgments.

With respect to torture-murder, Pustilnik points out that courts have upheld convictions even when the victim was insensate. What we punish when we punish murder by torture is not the causation of a certain amount of suffering, but rather “the corrupt tastes and preferences of the * * * murderer.” But the physical suffering of the victim is not irrelevant to moral judgments, either. For instance, Pustilnik rejects attempts to define torture purely in terms of the level of power the interrogator holds over the interrogated. The right approach, Pustilnik argues, is “embodied morality.” Embodied morality acknowledges that human relations are at least two-dimensional, physical and social. “Torture targets both of these. Focusing on pain measurement to the exclusion of torture’s normative destruction of victims misses half the equation.” Similarly, we know that the torture-murderer’s tastes are “corrupt” precisely because of the pain they would cause a sentient human being.

Pustilnik goes further and examines how the two dimensions of human relations, the physical and the social, interpenetrate. Here she considers a second pair of case studies: Eighth Amendment challenges to the death penalty, and abortion. In both contexts, she argues that “[t]he terms of the debates themselves show that the appeal to pain –a transcendent signifier, a universal proxy for empathy, and a subject that evokes visceral and moral horror –is substantially strategic.” From this perspective, the invocation of pain, the deepest symbol of the vulnerability of the body, signifies that we have entered a moral space. Death penalty advocates challenge the administration of potassium chloride and pancuronium bromide not solely because it is painful, but as a way of challenging the morality of the death penalty itself. Similarly, several states have passed “fetal pain” statutes, requiring that women seeking abortions be told that their fetus can experience pain. Pustilnik argues that the primary work such statutes do is symbolic: acknowledging a fetus’s pain establishes it as a being to whom moral concern is due, thus undermining the moral foundation of abortion’s legality.

Yet the amount of pain caused by these means of killing also plays a role, and not just the fact of pain itself. If a method of execution were completely painless there would be no basis for a legal challenge, and at the other extreme, if the method involved gratuitous pain it would clearly be unconstitutional. And, although Pustilnik asserts that anti-abortion advocates have ignored or rejected scientific evidence that fetuses do not feel pain until birth, the power of films such as “The Silent Scream” is in the suggestion that there is a truth in the body and its suffering. The existence or nonexistence of pain in general tells us there is a moral issue at hand; the measure of pain, the physical suffering of particular beings, is important for weighing the moral significance of the values at stake in each case.

The indissolubility of the physical and the social, Pustilnik shows, goes all the way down, into the scientific measurement of pain itself. Looking at the neuroscientific research, she notes that even our advances toward an “objective” measurement of pain have limits: a person’s experience of pain is mediated not only by the body and the brain but by the mind. The same signals sent through the nerves may be received in the mind in different ways, depending on whether the subject is conscious or unconscious, fatigued or alert, happy or sad. The level of pain experienced also depends on how the subject interprets the meaning of the pain.  David Morris, in The Culture of Pain, has explored the hermeneutic dimension of pain, taking further the distinction Pustilnik notes between “nociception” (the term for activation in the nerves that transmit pain signals) and the felt experience of “pain.” Pustilnik examines the possible sources of false positives and false negatives as observers try to link levels of nociception to levels of pain. The upshot is that our technician watching fMRI images from the control room of the interrogation center twenty-five years from now will still not be able to determine with perfect confidence whether the detainee is or is not experiencing pain.

Pustilnik concludes:

There is an ontological primacy to pain because it is through the suffering of the self that we understand the wrongfulness of causing gratuitous suffering to others; some of this is direct, empathic, and likely physiological. In a sense, such reasoning is grounded in the body’s physicality. And yet, it is also grounded in the body’s status within the nomos which is informed by–but not coextensive with–physiological experience. The experience of the body, both of self and “other,” is also contingent. Sociohistorical context defines which “others” are seen as sufficiently like the self such that their pain experience is credited as real; once categorized, they are deemed deserving of protection from pain. Since such questions as “who can suffer” and “whose suffering counts” define the membership of the community of empathic inclusion, they also define what degree of treatment toward particular legal subjects (whether humans, human fetuses, animals, conscious machines, and others yet to be named) is permissible.

In recent years, neuroscience and cognitive science have appeared to be laying siege to substantive criminal law. New developments in science and technology are poised to help lawyers and their experts predict wrongdoing, assess the responsibility of juveniles, assess culpability, distinguish lies from truth on the witness stand, and decode memories – not to mention helping the police detect illegal activity from afar. At the same time, Stephen Morse has noted in a droll formulation, the excitement generated by new scientific discoveries can lead to “Brain Overclaim Syndrome.”  Rather than seeing a competition between science and ethics or technology and law and weighing in on one side or the other, Pustilnik uses our increasing ability to see and manipulate the workings of the body as an occasion to deepen our insight into the links between body and mind, objective and subjective. The dimensions of the physical and the social, she shows, are the double strands of morality’s DNA. Criminal law necessarily must grapple with both.

Aya Gruber

It seems fair to say that in current criminal law and criminology discourse, Jim Crow analogies are all the rage. The dialogue, and especially Michelle Alexander’s book, The New Jim Crow, is an important and necessary intervention in the national conversation about crime and punishment. Alexander’s book makes the case that the modern U.S. criminal system operates to impose de jure and de facto second class citizenship on African Americans in a strikingly similar manner to Jim-Crow-era laws. The New Jim Crow has received an enormous amount of publicity and has successfully inserted questions of racial hierarchy into what are often insular debates over dessert, deterrence, and appropriate crime management. As much as the Jim Crow dialogue illuminates often ignored or deliberately down-played racial aspects of the U.S. penal state it, like all analogies, is an imperfect comparison. It therefore has a tendency to obscure other factors important to the understanding and critique of mass incarceration—factors like cultural discourses of violence that transcend race, the relationship between incarceration and class and labor, and the role of criminal law in perpetuating and maintaining neoliberal political and economic structures.

This is where James Forman Jr.’s article comes in. In a move that many of his friends and colleagues viewed as head-scratching, Forman, a staunch critic of the American carceral state, decided to set forth a critique of the Jim Crow critique of mass incarceration. Many progressives have a strong instinct that they should stand by the Jim Crow narrative, especially now that it is gaining so much traction. Despite this, Forman makes the case that understanding the limits of the analogy explains why the racial critique of mass incarceration, which has existed for decades, has not succeeded in radically changing support for tough-on-crime measures, even among many African Americans. Forman also argues that concentrating solely on a reductionist racial picture of the criminal system deflects attention from the many other ways that system reflects and reproduces social inequality. In the article, Forman lists six objections to the analogy, but here I want to concentrate on two larger themes of his paper, antiessentialism and accounting for violence.

Turning to antiessentialism, Forman urges progressive incarceration critics to understand that African Americans do not share monolithic views on the criminal justice system, to understand that blacks are not uniformly affected by criminal policies, to recognize mass incarceration’s effects on certain groups of white Americans, and indeed to move past the black-white binary altogether. One might argue that racial critiques of harsh criminal justice will be more persuasive when they ignore prosecution-oriented blacks or write off their attitudes as a product of an unjustly constrained choice between continual victimhood and supporting mass incarceration. Yet Forman says that the cost of this persuasiveness is the perpetuation of an incomplete vision of the relationship between African-Americans and crime control. To make the case that critics cannot dismiss black support for harsh anticrime policies, Forman starts with the anecdote that the Harlem NAACP supported the Rockefeller drug laws and moves to his experiences as a public defender in D.C., fighting to control the upwardly ratcheting criminal system against black prosecutors, judges, and D.C. Council members. The fact that D.C. public defenders like Forman and myself (James was my training director when I was a public defender in D.C.) have had to fight so hard against the tough-on-crime wave in a majority African-American city belies any claim of a uniform African American distaste for prosecutorial policies.

Of course, the question is: Why, if you are an opponent of the oppressive and racist U.S. penal state, would you highlight this weakness in the Jim Crow analogy? One might convincingly argue that Forman’s description of black support for incarceration actually bolsters the familiar “underpolicing” argument that African American communities want and need more, not less, criminal enforcement and punishment. Forman, however, is saying something very different—he is claiming that in order to combat mass incarceration we must understand criminal law, policy, and narrative as a complex tyrannical structure that enlists groups in their own oppression. The importance of this argument cannot be understated. When one makes a simplistic racial case against criminal policies, it is vulnerable to the trump card argument: “Minorities do it.” For example, when critics claim that the LAPD engages in rampant black racial profiling in certain neighborhoods, a common response is that the claim cannot be true because the police in those neighborhoods are predominantly African American. This response can only be undercut by a larger understanding of the how the racialized institution of policing transcends the race of any particular police officer. However, I believe that a critique of both the Jim Crow analogy and the underpolicing argument can be fully achieved only with an account of how the institution of criminal justice in the United States is racially subordinating—despite the existence of black support for it. Given that this article is primarily a response to Jim Crow analogists, it is understandable that Forman stops before the substantive account. Nonetheless, I think his critique will be stronger if read together with other articles that provide such an account or when Forman formulates his own institutional analysis.

While the antiessentialism argument is very important, I think the greatest contribution of this article is Forman’s exhortation for progressives to account for real criminal violence in their critiques of the criminal system. Forman rightly notes that the Jim Crow narrative (and, I might add, other progressive narratives) tends to concentrate on the role of drug laws in constructing the penal state. Such narratives also tend to describe in detail how defendants are subjected to sadistic incarceration, suffer debilitating collateral consequences, and have their rights denied, without mentioning what the defendant did. (Compare this to victims’ rights and pro-prosecution cases and articles that describe heinous crimes in exacting detail.) While this might be a persuasive tactic, it obscures reality and thus makes the critique vulnerable to attack. The fact of the matter is that the majority of people under penal supervision were convicted for acts of violence. Having ignored this inconvenient reality, many progressive criminal justice critics, when faced with questions about violent criminals, murderers, and, more troubling, those who perpetrate bias crimes, either have nothing to say or effectively switch sides. Concerns over mass incarceration quickly recede when feminists, critical race theorists, and others weigh in on whether to eliminate the defense of extreme emotional distress, remove the force requirement from rape law, or narrow self-defense because broad murder defenses give a pass to people like George Zimmerman.

Perhaps this is just the way it is. Maybe the best progressive stance is that certain offenses merit decriminalization (drugs) and other offenses merit more criminalization (domestic violence and hate crimes). But I don’t think so. I think that this position demonstrates that many progressives have internalized the larger cultural sensationalization and cathartic condemnation of violence, which is itself racially oppressive in nature and plays no small part in constructing and maintaining mass incarceration. Forman’s article highlights why we need a progressive account of violence. Critics of incarceration need a way to be able to stare instances of violence, even race and gender-based violence, in the face and unwaveringly maintain an opposition to the carceral state. Forman says that inserting violence into the mix raises “supremely difficult questions that I do not attempt to answer in this Article.”

Nevertheless, he hints at some facets of what a progressive answer might involve, including focusing on prevention over retribution, engaging in the hard/soft determinism debate about responsibility for violent crime, and understanding the role of mass incarceration and tough-on-crime narratives in perpetuating violent behavior. I might add some others like problematizing cultural narratives of the harms of violence, focusing on the political deployment of violence narratives, and understanding condemnation of violence as a distinctly racialized and gendered phenomenon. Defending lenity in the face of violence is a difficult endeavor, but some intrepid scholars have begun to travel down this challenging road. See, e.g, Alice Ristroph, Criminal Law in the Shadow of Violence. I’d like to see more scholars, including Forman, become fellow travelers.

Elizabeth Joh

For observers of the police, an arrest is a black hole of decision-making.  I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions.  Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion.  Why this person, and not that one?  Why an arrest, rather than a citation, a warning, or ignoring the problem?  Why arrest on this street corner, and not another one?  Even if you could interview the arresting officer, it’s unlikely you’d get the full story.  Good policing usually involves a mix of training, street smarts, and experienced-based hunches.  Unsurprisingly, defendants often challenge the bases of these choices.  Those police discretion cases that have been decided by the Supreme Court are striking in two respects.  First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment.  Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer.  Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable.  While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences.  A familiar example is the implementation of quality of life policing in New York City in the early 1990s.  With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach.  Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking.  To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland.

While the link between New York City’s crime drop and policing may be disputed, the role of departmental policy in changing officer discretion is not.  The NYPD itself changed some longstanding assumptions about basic street policing.  First, the department directed cops to enforce specific misdemeanor crimes aimed at improving the quality of life.  Second, the department dramatically increased the number of arrests cops were to conduct for these crimes, crimes that might previously have gone ignored or would have received only a summons.  (For instance, by 1996, the department aimed to double the number of arrests for quality of life offenses.  Clifford Krauss, New York Times, Mar. 5, 1996.) Finally, the department made special efforts to focus on places deemed problem areas, such as Washington Square Park and Times Square.  As Professor Sekhon points out, these three discretionary changes–what he terms enforcement priority, enforcement tactics, and geographic deployment–only happen when decisions are made at the top.

From the police point of view, such arrest policies make good sense.  Negotiating, advising, and reprimanding are valuable policing skills, but they are difficult to capture in a data set. Arrest data represent a quantifiable demonstration of “doing something” in the face of a crime problem.  (Indeed, as Sekhon points out, arrest numbers drive the “occupational success” of NYPD officers in a quality of life enforcement regime.)  Arrest numbers were central to the crime control strategy meetings then-Commissioner Bratton instituted at the NYPD that pushed down accountability to precinct commanders.

Yet these departmental decisions can distribute arrests unfairly and probably with more far-reaching consequences than the decisions of any single officer.  As Sekhon argues, too often these discretionary actions result in burdening poor minorities disproportionately.  In 2011 alone, the NYPD arrested more than 50,000 people, most of them African-American or Hispanic, for low level marijuana possession.  And for many of these, arrest, even without conviction, unleashed a host of personal crises: lost jobs, public housing termination, and family court problems (Brent Staples, New York Times, April 28, 2012).

Having clearly shown that departmental discretion can drive inequality, Sekhon argues that arrests that result from these departmental choices should be thought of in terms of distributive justice.  If police managers set arrest policies, these managers must take into account both the benefits and burdens of any particular policing choice.  Specifically, equitable arrest policies should result in arrests made “in proportion to the rate of specific criminal misconduct in specific areas,” as well as avoiding choices based on “highly subjective, impressionistic criteria such as the ‘disorderliness’ of a neighborhood” (p. 1220).  These outcomes require, according to Sekhon, improved data collection and the involvement of prosecutors and courts.

By highlighting discretionary decisions made at the departmental level, Sekhon makes an important contribution to those who follow the police.  I’m perhaps less sanguine about the prospect of convincing courts and prosecutors to take up the cause, but there are many other actors, particularly in a time of internet journalism and activism, capable of influencing departmental choices.  Nor am I about to jettison my concerns about the suspect decisions individual cops make on their own.  But as Sekhon reminds us, police departments have their own distinct role in shaping just outcomes.