Influential But Uninformed: What Scotus Knows About Policing

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).

Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?

That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)

The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong?

Mistaken factual premises can distort the kinds of questions posed by the Court as well as the doctrinal solutions it develops to address them. Further, a Court decision based on that mistaken view can lead to problematic rules for the police: intervention that is too heavy-handed or ineffectual. Finally, a policing fact of the type described by Stoughton takes on an implicit precedential value of its own. For example, the Court’s description of the use of force by police in Graham v. Connor–which Stoughton picks apart as grossly inaccurate–has itself been quoted more than 2,300 times in subsequent lower court opinions. (P. 887.)

Some policing “facts,” as Stoughton demonstrates, are just plain wrong. Take the exclusionary rule’s modern rationale: police deterrence. While many have criticized the rule’s development and application, Stoughton takes to task the basic factual premise: do the police care about “good” convictions? The simple answer is no. In the vast majority of cases, nothing about the patrol officer’s workaday world hinges on the ultimate conviction of the person they arrest. Convictions carry no weight in an officer’s professional evaluations. Indeed, it may be nearly impossible for the arresting officer ever to find out what actually happened in any one case, given the limited interactions between the bureaucracies of police and prosecutorial administration. Moreover, the informal advice a rookie officer is likely to receive is to deaden herself to the ultimate disposition of the arrestee. Doing otherwise leads to unnecessary professional stress. Thus, police deterrence, while perhaps conceptually appealing, doesn’t square with reality.

Stoughton proposes a number of possible solutions to improve policing facts. The Court could rely upon existing procedural mechanisms like requesting additional briefing from the parties or further oral argument. More ambitiously, Stoughton proposes the possibility of formally acknowledging the independent fact-finding the Court already engages in as an informal matter. For instance, the Court could call on amici to brief specific factual issues. Most simply, the Court might regulate itself so that legislative facts appear in opinions only when empirically supported. (It’s been done before: the Miranda v. Arizona majority opinion cites more than “six police training manuals; three texts about policing; eight academic articles, three news articles, [and] reports by the Wickersham Commission, the Commission on Civil Rights, and the [ACLU].” (P. 855.))

It would be strange if the Supreme Court asserted unsupported “facts” about genetics or economics in its opinions; so why does it do so about the police? Many Americans feel some familiarity with the realities of law enforcement because of its pervasive presence in fictionalized media and the news, even if those depictions are mistaken. Learning criminal procedure from Law and Order might be inadvisable, but it’s not dangerous. Yet, as Stoughton points out in his thoughtful article, when the Court gets the police wrong, that misunderstanding threatens our basic liberties.


What We Talk About When We Talk About Crimes

John S. Stinneford, Punishment Without Culpability, 102 J. Crim. L. & Criminology 653 (2012).

John Stinneford begins his article by asking the reader to imagine herself a UPS delivery truck driver in Tampa, Florida. He continues:

While on your way to make [a] delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. You do have the right to raise lack of knowledge as an affirmative defense – but the burden rests on you.

Is this legal? Probably. Why is the Supreme Court OK with that? Stinneford’s article explores this question.

For nearly ten years now, through all its three editions, Cynthia Lee and I have begun our criminal law casebook with an excerpt from H.L.A. Hart’s 1958 article, “The Aims of the Criminal Law.” In this article, which began life as a text written for his own first-year students, Hart raises the question, “What is a crime?” He points out that criminal convictions share with tort judgments and other civil sanctions all sorts of utilitarian functions. Having created confusion in the hearts of his students in classic law professor fashion, though, Hart mercifully and immediately dispels it. He quotes a 1953 article by one Professor Gardner: “It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.”

Hart then sticks the landing with a passage I invariably point out to my own first-year students:

If this is what a “criminal” penalty is, then, we can say readily enough what a “crime” is. It is not simply anything which a legislature chooses to call a “crime.” It is not simply antisocial conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a “criminal” penalty. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.

Buried in a footnote immediately preceding this declaration, however, Hart has this to say:

It is, of course, to be understood that Professor Gardner’s statement and the statements in the text do not accurately describe the significance of a criminal conviction under many modern regulatory and other statutes which penalize people who have had no awareness nor reason for awareness of wrong-doing. The central thesis of this paper, to be developed below, is that a sanction which ineradicably imports blame, both traditionally and in most of its current applications, is misused when it is thus applied to conduct which is not blameworthy.

With his article Punishment Without Culpability, John Stinneford returns to these paragraphs and updates Hart’s argument for the twenty-first century. There are topics he omits and arguments with which I disagree – as I’ll outline below — but the bottom line is that I love this article for its accessibility, its insight, and its provocative thesis. Reading it was like having a great faculty-lounge conversation.

For most of the article, Stinneford leads the reader on a trip through the weeds of substantive criminal law, beginning with those strict liability cases to which Hart referred in his footnote, and connecting them to many of the doctrines that make criminal law teachers feel uneasy and dissatisfied, if not downright outraged: the criminal-civil distinction, which permits the state to incarcerate indefinitely people charged with a “sexually violent offense”1; the “voluntary act” doctrine, which permits the state to criminalize behavior stemming from addiction, poverty, and homelessness as long as the individual’s conduct contains some element of “choice”2; the Court’s “element” jurisprudence, permitting the state to place the burden of proof for any matter on a criminal defendant as long as it is articulated as a defense rather than as an element of the crime3; and the embarrassing (although entertaining) spectacle of the Court’s fight over Eighth Amendment proportionality jurisprudence, which has been resolved for the moment with an agreement to defer to state legislatures to impose whatever punishment they see fit on offenders to further any penological goal they like (thus permitting California to sentence a man to life in prison for shoplifting three golf clubs).4 Each of these doctrines, as Hart and Stinneford recognize, is in tension with the notion that the criminal law has a deep and ineradicable connection to moral blameworthiness. Together, they suggest the dismal conclusion that the Court’s commitment to culpability is largely fictional.

Stinneford might have added to this frustrating tour a couple of other stops: Montana v. Egelhoff,5 and Clark v. Arizona.6 In Egelhoff, the Supreme Court considered the constitutionality under the Due Process Clause of a Montana statute providing that voluntary intoxication “may not be taken into consideration in determining the existence of a mental state which is an element of a criminal offense.” The appellant, convicted of “purposely” or “knowingly” killing two people, argued that extreme alcohol intoxication made his commission of the killings physically impossible. (Over an hour after the killings, Egelhoff was discovered by police in a car along with the victims, yelling obscenities, and upon testing registered a blood alcohol content of .36, just below the level when coma and death ensue.) He argued that to prohibit him from arguing that he was unable, due to extreme intoxication, to form the mental states of purpose and knowledge was to relieve the prosecution of the burden to prove every element of the crime beyond a reasonable doubt, in violation of In re Winship,7 and Sandstrom v. Montana. 8 The Montana Supreme Court agreed. The Supreme Court, however, disagreed, holding that the legislature was simply choosing to return its law to that of an earlier historical period when voluntary intoxication was no defense to crime.

Clark v. Arizona reached a similar result. There, the appellant shot a police officer while apparently in the grip of delusions stemming from paranoid schizophrenia. He both pleaded insanity and argued that his mental illness prevented him from forming the mental states of “purpose” or “knowledge” required for first degree murder. In the state of Arizona, however, evidence of a defendant’s mental disorder short of insanity may not be introduced to negate the mens rea element of a crime. Clark’s insanity argument failed, and on certiorari the Court upheld Clark’s conviction of first degree murder and his sentence of 25 years to life, treating the issue as a matter of the admissibility of evidence and reasoning that “Arizona’s rule serves to preserve the State’s chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors.”

The Court’s reluctance to constitutionalize culpability has not been total, and Stinneford recognizes and discusses various attempts to keep the principle alive. One startling example is the Court’s recent string of decisions limiting the extent to which the state may punish youthful offenders, the latest of which is Miller v. Alabama. 9 But these cases sit uneasily with the deference to legislative prerogative when it comes to adult criminal responsibility.

Where does the Court’s awkward dance with the culpability principle originate, and how can it be resolved? Stinneford argues that the Supreme Court lost its way in the first half of the twentieth century, and that the culprit was what he calls “instrumentalism.” Before the Civil War, according to his account, substantive criminal law was comfortably rooted in history and tradition; courts had no problem finding substantive culpability principles in the Anglo-American common law and upholding them against legislative overreach. Something happened, though, when Oliver Wendell Holmes and Thomas Dewey began to detach law from morality. The philosophy of “instrumentalism” – the position that law is whatever its makers say it is – spoke to these skeptical forerunners of American Legal Realism, and through Holmes and others it eventually reached the Court. Stinneford argues that the culpability principle in criminal law has been one of instrumentalism’s victims. As a corollary, Stinneford argues that the Court’s culpability jurisprudence will not be coherent until the Court abandons instrumentalism and returns to tradition and morality as the foundation of substantive criminal law.

I can’t say I found this claim of Stinneford’s satisfying either as a matter of history or principle. As a historical argument, it doesn’t engage with more detailed and careful histories of American criminal law, such as Gerald Leonard’s10. Leonard argues that Holmes’ acceptance of criminal law as a purely utilitarian instrument came out of a longer tradition according to which criminal law serves the purpose of protecting public order without much concern for individual fault. Thus, for example, the legal-moral wrong doctrine in statutory rape, which prevents a defendant from arguing that he made a mistake about the victim’s age – a violation of the culpability principle that is far older than the American strict liability cases.

Stinneford’s article also raises more questions than it answers about what it might mean for this very divided Court to look for the culpability principle in tradition and morality. What if our traditions are misguided? How do we distinguish legitimate moral judgments from prejudice? For example, in Bowers v. Hardwick,11 the Court was able to point to a long and robust tradition of criminalizing sodomy as a justification for upholding Michael Hardwick’s criminal conviction for going to bed with another man. Defending an equal protection approach to the case, Justice O’Connor asserted that “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Is it OK for the Court to rely on morality when it comes to culpability, but not for the legislature to do so when it comes to deciding what a crime is in the first place?

Or, let’s go back to Egelhoff and Clark. If Bowers shows that history and tradition is sometimes wrong, these cases raise the question of when “tradition” is supposed to begin, and against what baseline “morality” should be measured. As the majority pointed out in Egelhoff, before evidence of voluntary intoxication began to be admitted to negate mens rea, it was disallowed. Before the M’Naghten rule was introduced as a modern insanity standard, an offender was culpable unless he or she exhibited no more sensibility than a “wild beast.” Doesn’t the search for stable principles of morality lead us back either to older judicial pronouncements which might no longer represent social consensus, or to the Court’s own subjective musings – the problem that has led to the current standoff in Eighth Amendment proportionality jurisprudence?

It seems to me that resolving the problem of culpability in our morally pluralized (if not fully libertarian) twenty-first century will require something more, or other, than a return to the past. Stinneford’s argument thus raises the issue I often raise explicitly with my students: Does Hart’s confident declaration that the criminal law represents “a formal and solemn pronouncement of the moral condemnation of the community” make any sense at all today? Americans have not by any means given up moral judgments — after all, they make up 90 percent of reality TV. But is there any longer a coherent tradition from which a court could reliably decide what culpability requires? And even if so, how are the courts to deploy this tradition without fully constitutionalizing substantive defenses and defeating the values of federalism and separation of powers?

Punishment Without Culpability doesn’t answer these questions, but it raises them with clarity. Reading it drove me back into the cases I regularly teach with a new curiosity; it brought me back to Hart’s article; and it got me thinking anew about intellectual history, legal positivism, pragmatism, and that cynic and possible nihilist, Oliver Wendell Holmes. It raises the big question: What do we talk about when we talk about crimes? Stinneford’s article is candy for the brain. Read it, argue with it in your mind, and enjoy the buzz.

  1. Kansas v. Hendricks, 117 S. Ct. 2072 (1997). []
  2. Powell v. Texas, 392 U.S. 514 (1968). []
  3. Patterson v. New York, 432 U.S. 197 (1977). []
  4. Ewing v. California, 538 U.S. 11 (2003). []
  5. Montana v. Egelhoff, 518 U.S. 37 (1996). []
  6. Clark v. Arizona, 548 U.S. 735 (2006). []
  7. In re Winship397 U.S. 358 (1970). []
  8. Sandstrom v. Montana442 U.S. 510 (1979). []
  9. Miller v. Alabama, 132 S. Ct. 2455 (2012). []
  10. Gerald Leonard, Towards a Legal History of American Criminal Law Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691 (2003). []
  11. Bowers v. Hardwick, 478 U.S. 186 (1986). []

Dan Markel

Dan Markel

Dan Markel

It is with great grief and shock that we note the recent murder of criminal law co-editor Dan Markel, D’Alemberte Professor of Law, at Florida State University. Dan received his undergraduate and law degrees from Harvard University (where he later was a Berkman fellow) and a M.Phil in political and intellectual history from Cambridge University. After working as an associate with the Washington D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans, & Figel, Dan joined the FSU faculty in 2005. Dan may be best known as the founder and anchor of PrawfsBlawg, a pioneering legal blog that hosts a forum of legal academics commenting on the Supreme Court, the legal job market, and all things jurisprudential. For readers of criminal law posts on Jotwell Dan will be remembered for producing a tidal wave of articles and a book during his less than a decade as a law professor examining facets of modern criminal law procedure and substance from the perspective of his original reconstruction of liberal retributivism. Tilting at such seemingly disparate targets as mercy, family privileges in evidentiary rules, and capital punishment, Dan followed his principles out to the limits of where his razor sharp analytics took him. Dan founded and contributed to intellectual communities both online and in person, and he enjoyed them more thoroughly than almost anyone, we are grateful to have had him in ours. He will be sorely missed.


What Can Be Learned From the Wrongfully Accused?

Daniel Gilveber & Amy Farrell, Not Guilty: Are the Acquitted Innocent (2012).

One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.

A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases.

Not Guilty discloses that jurors tend to acquit precisely when there is insufficient evidence of actual guilt and not for some other idiosyncratic reasons. The authors conclude that the most obvious explanation for a dearth of evidence of guilt is the absence of guilt itself, and not some other far-fetched factor. They find no basis for concluding that other factors are at playIn addition, the authors were able to discern that in most cases, judges and juries base their verdicts on similar factors and tend to come to consistent conclusions regarding guilt, a determination that belies the assumption that jurors are less rational, perceptive or law-abiding than judges in their verdicts. They found one notable exception to this. Indeed, one of the most intriguing and puzzling discoveries the researchers make – and this point warrants greater study and exploration – is that when judges and juries do deviate in their assessments of guilt, race is a significant factor. It so happens that, left to their own devices, judges would convict black defendants at higher rates than juries would, and would acquit white defendants at higher rates than juries. Judges voted to convict African-American defendants and Latino defendants at higher rates than they voted to convict their white counterparts. Without more information, we can’t know whether this difference is grounded in racial bias or some other factor. In any event, what matters to Givelber and Farrell is not understanding the basis for the acquittal gap between juries and judges when it comes to race but explaining the perception that acquittals—when they occur—are based on extra-legal factors. One explanation for this perception of acquittals that also takes race into account may be that several high profile and racially-controversial trials have resulted in acquittals. Think here of O.J. Simpson, Rodney King or George Zimmerman cases and the media attention surrounding them. These cases arguably leave the public with impression that “not guilty” jury verdicts are based on something other than a lack of guilt.

In the end, Givelber and Farrell’s data cannot quantify the degree to which acquittals represent actual innocence. They convincingly argue that no study could prove a negative. Still, their findings support the hypothesis that verdicts tend to correlate with the strength and existence of evidence. It thus opens the door to further examination of acquittals and the circumstances that accompany what we should now assume are wrongful accusations.


Violence, Yearning, and Hope

If you seek inspiration in these times of debilitating negativity toward the law and lawyers, read Gilbert King’s Devil in the Grove. A student who represents the best in the law’s future gave me the book. The gift was far greater than the bound pages or the pleasure of an engrossing weekend. It was a renewal of awe at what the law and lawyers can do to rescue people and change hardened minds and hearts in atmospheres of fear, loathing, and violence.

After Devil in the Grove has inspired you with its excellent history of our recent past, I recommend reading works by two outstanding junior scholars, Allegra M. McLeod and Daniel I. Morales, who are imagining our future. What I love about all three works are the accounts of how law can save as well as destroy and the lessons about how to change mindsets, not just the laws on the books.

First let me begin with the inspiring and horrifying journey into our past: Devil in the Grove. Real-life heroes more magnificent than fiction. Thurgood Marshall, Jack Greenberg, Franklin Williams, and other lawyers risk their lives to defend wrongly accused black men in Southern towns where lynch mobs and children pose grinning next to murdered black men. Marshall is a miracle worker and savior, even securing acquittals in communities astonished at seeing a black lawyer talk in court “as if he were a white man.” People living in fear of mounting racial violence pray and yearn that the legendary lawyer will come protect and rescue them.

Not every case ends in salvation; too many do not. This book focuses on one such case of alleged rape that ensnared four young black men. I will refrain from too many spoilers. Just this: Even when Marshall does not win, he succeeds in changing grizzled, hardened minds, including a memorably drawn old prosecutor, aptly surnamed Hunter, who realizes too late that he was not doing justice and tries to rectify the situation.

Dreamers who hope to transform hardened institutions have much to learn from the brilliant pragmatic tactician Thurgood Marshall. He was disciplined and careful in his selection of cases, for example, limiting representation to the wrongly accused. He took steps incrementally like a chess master who sees many moves ahead. He knew when to dance with powerful law enforcement officials such as J. Edgar Hoover and when to press for action. He held fast to his pragmatic plan for successful change, even against accusations that he was “craven” in moving incrementally. He had a gift for reaching rather than further alienating people of dramatically different worldviews. Hunter exemplifies the power of change. Though a “terrible racist,” he marveled after facing Marshall in trial, “Boy, that’s a great man.”

To criticize and shout for change is common. To create or rebuild something better takes rare brilliance and the talent and pragmatism to speak across the spectrum of worldviews. The lawyers in Devil in the Grove built something greater in the swamps of the basest of human impulses. We live in a much better society because of these great lawyers, who transformed law from a hostage of violence to an instrument of salvation.

Now let’s turn to our present and future. The works of two star junior scholars, Allegra McLeod and Daniel Morales, are fascinating to read after the rousing tales of Devil in the Grove. We have come a long way from the violence-drenched backwoods of our history, but McLeod argues that we have much more to do. She seeks alternatives to “conventional criminal regulatory approaches . . . with all of their associated violence” for communities under surveillance, the incarcerated, and victims of serious crime who risk re-traumatization in adversarial criminal adjudication.

In a recent essay building on prior excellent work, McLeod surveys promising, albeit “unfinished alternatives.” By unfinished alternatives, McLeod means attempts “to change the existing state of affairs through an intervention that is partial, incomplete and in process.” She draws on the work of Norwegian social theorist Thomas Mathiesen, who wrote that “any attempt to change the existing order into something completely finished, a fully formed entity, is destined to fail” because it will be viewed as unrecognizable, implausible, and “disregarded as permanently ‘outside.’” As Thurgood Marshall wisely knew, incremental moves can lay the foundation for a transformation without being crushed at the outset.

McLeod discusses several examples of promising approaches, such as epidemiologist Gary Slutkin’s Violence Interrupters strategy, which draws on epidemiological insights for the management of infectious diseases. The goal is to disrupt the spread of violence through targeted interventions in sites of likely eruption through community-situated educators. For more examples, read McLeod’s essay and the work of the innovators profiled such as Mark A. R. Kleiman’s excellent book When Brute Force Fails (2009) or David M. Kennedy’s rousing Don’t Shoot (2011).

Writing in another polarized context, immigration scholar Daniel I. Morales offers important insights about the need to address people’s perceptions, not just abstract laws. Morales illuminates how harsh laws are symptoms of underlying social resentments and a sense of being besieged that may be further inflamed by reformist efforts that ignore or dismiss—rather than address—such perceptions.

So how might reformers begin to address entrenched perceptions? Here Morales’s ideas are a creative twist on the strategies that civil rights reformers like Marshall used—even as he is careful to distinguish the situation and history of African Americans in the United States from undocumented immigrants. Morales argues for beginning the work of perception change at the ground level rather than focusing on the Supreme Court, the President, or Congress. One of his ideas is allowing citizen juries rather than immigration judges decide whether long-standing resident immigrants should be deported.

I am still chewing over the idea and you may too. While one may muse about feasibility, Devil in the Grove reminds us of the educative and potentially mindset-changing power of courageous lawyers willing to enter communities to try to change hardened perceptions.


What Comes After Mass Incarceration?

The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.

Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):

  • “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
  • “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
  • “Incapacitation effects of prison are small, primarily due to replacement.”
  • “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
  • Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
  • Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.

In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem.

Thus, the authors conclude, our four-decades-long “social experiment” in criminal justice policy has been an abject failure. Clear and Frost also caution that, even if, as they claim, the experiment is wrapping up, its consequences will be with us for decades. The carnage to individuals and neighborhoods that has resulted from imprisoning tens of thousands of non-violent offenders—most of them people of color—will have long-term effects. Likewise, the damage to hundreds of thousands of offenders and their families caused by federal and state legislation barring ex-offenders from jobs, scholarships, housing, and custody of their children is not likely do dissipate soon.

Many of the authors’ suggestions for a new direction—the increased use of parole, the repeal of recidivism statutes and mandatory minima, the elimination of the collateral consequences associated with conviction, and the creation of programs that reduce risk—have been bandied about for years and are currently in play in several states. But the authors also tout what has come to be called “justice reinvestment.” The idea is to use the money previously allocated to imprisoning people to rejuvenate the communities from which the offenders come. This reinvestment, the authors stress, must be aimed at supporting truly local efforts, not at treatment programs staffed by people who live outside these communities or at retooling social services run by the federal and state government (although the authors are not against these types of programs). Justice reinvestment means feeding money and support to the private sector in offenders’ neighborhoods in an effort to increase the neighborhood’s social stability. Thus, for instance, ex-offenders could join with other community members

to rehabilitate housing and schools, redesign and rebuild parks and playgrounds, and redevelop and rebuild the physical infrastructure and social fabric of their own neighborhoods . . . . Other investments might include a locally run community loan pool to make micro-loans to create jobs or family development loans for education, debt consolidation, or home ownership and rehabilitation, transportation micro-enterprises for residents commuting outside the neighborhood, a one-stop shop for job counseling and placement services, or geographically targeted hiring incentives for employers (Pp. 179–80).

As the authors admit, this kind of re-orientation is a “tall order,” and they are realistic about this and other solutions. But the authors point out that—without incentives to engage in such programs—judges, prosecutors, probation officers, and others in the system are encouraged to take the less risky, more expensive, and ultimately less-effective alternative of sending offenders outside the community (usually to prison).

Clear and Frost are also aware that their prediction about the impending demise of what they call the Punishment Imperative “will be received with some disbelief.” (P. 186.) But they point out that with crime rates going down, prison costs going up, and evidence-based research about alternatives to prison now widely acknowledged, optimism on this score is warranted. They advise that we need to take advantage of the situation now, before the next spike in crime, the next upturn in the economy, or the next anti-crime crusade by politicians.

Whether the reinvestment effort can succeed at significantly reducing incarceration is not something that the authors discuss at any length. I have my doubts. Huge cultural changes would probably have to occur just to move the United States within shouting distance of the lower imprisonment rates and sentence lengths found in most European countries. Our tendencies toward populism (which encourages knee-jerk, poll-driven reactions to crime), individualism (which posits that people, not situations, are responsible for criminal acts), religiosity (the fundamentalist version of which holds that evil is real, and found everywhere), capitalism (which has spurred the prison privatization movement, along with contracts that require governments to keep those prisons full), localism (which leads to punishment disparity and a failure to internalize state prison costs), and even our adherence to constitutional rights (which make trials so expensive that prosecutors lobby for tough sentence ranges to get plea bargaining leverage) are in stark contrast to European proclivities.

At the same time, there is hope that the justice reinvestment initiative outlined by Clear and Frost could take advantage of some of these American characteristics, especially our individualist, capitalist, and localist instincts. Their recommendations are definitely worth a try.


State Control of Black Mothers

Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has long provided insightful analysis of the ways in which criminal justice policies police black families and the ways in which child welfare policies police the bodies of black women.1

In Prison, Foster Care, and the Systemic Punishment of Black Mothers (which was a part of an impressive UCLA symposium entitled Overpoliced and Underprotected: Women, Race and Criminalization), Roberts develops a detailed description of the “system intersectionality” between the punishing controlling systems of child welfare and the similarly racially discriminatory controlling systems that result in what is usually termed mass incarceration.2

Roberts describes the continuity between systems of mass incarceration that result in the incarceration of disproportionate numbers of black women, many of whom are the primary caretakers of children, and the disproportionate number of black children in foster care. Roberts highlights the political decision-making that creates these realities: “The welfare, prison, foster care, and deportation systems have all become extremely punitive mechanisms for regulating residents of the very neighborhoods most devastated by the evisceration of public resources.” (P. 1478.) “Instead of devoting adequate resources to support [the families of black mothers,] the state increasingly shuffles family members into the punitive machinery of law enforcement and child protection.” (Pp. 1491–92.)

Roberts begins with an overview of the dismal racial/gender disparities of imprisonment and foster care: Roughly one-third of women in prison are black and most of them are the primary caretakers of children; about one-third of children in foster care are black. These two phenomena are, of course, related to each other. The increase in incarceration of nonviolent mothers that is the result of punitive drug war enforcement that targets poor communities of color results in increases in the number of black children in foster care. But the intersections between the two systems are deeper. Mass incarceration diminishes the “extended networks of kin and friends” that might otherwise assist mothers who are not themselves imprisoned. Thus mothers whose financial position is already devastated by decreases in services and desperate economic conditions are left with fewer resources with which to cope, increasing the likelihood of child welfare intervention.

Roberts’ foci are not solely on the coexistence or even only on the intersection of foster care systems and criminal justice systems in the lives of black women. Just as mass incarceration has a spatial concentration, so too does welfare supervision and foster care removal—the impact of which social scientists have not fully investigated, according to Roberts. Furthermore, this spatial intersectional effect is often ignored in feminist analysis of domestic violence, which fails to “situate private violence within a broader context of inequitable social structures, including male domination but also barriers created by poverty, racism, and anti-immigrant polices that trap many women in violent homes.” (P. 1489.)

Roberts describes “system intersectionality,” which allows for an analysis of how “structures of privilege and disadvantages, such as gender, race, and class, interact . . .” and the ways in which “structures of power inextricably connect with and shape each other to create a system interlocking oppressions.” (P. 1491.) In the case of child welfare and prison, these systems “function together to discipline and control poor and low-income black women by keeping them under intense state supervision and blaming them for the hardships their families face as a result of societal inequities.” (P. 1491.) Prison rules that make visitation difficult and contact expensive, federal adoption law that insists on early decisions on permanent placement for children in foster care, and state laws that require incarcerated parents to fulfill case plans or lose custody conspire to make it nearly impossible for incarcerated parents to retain custody of their children. I would add that the expansive reach of conspiracy law, coupled with the war on drugs and mandatory sentencing means that many of these mothers will receive long prison sentences, further diminishing their prospects for retaining custody.3 And if that weren’t enough, the collateral consequences of a felony conviction—denial of public benefits including housing and education and the statutory disqualification from employment in the many low-level care-taking roles filled predominantly by women—dramatically increase the likelihood that felon mothers who managed to retain custody while incarcerated will subsequently lose custody of their children to the state post-release.

Roberts describes the ways in which crime and welfare policies reinforce and jointly produce stereotypes of black mothers as unfit parents because they are criminal, sexually promiscuous, “devious Welfare Queen[s],” or “family-demolishing Matriarch[s].” These stereotypes then justify the continued punitive controlling policies of both systems.

Roberts concludes by calling for “cross-movement strategies that can address multiple forms of systemic injustice.” While it is beyond the scope of Roberts’ essay to describe more fully what these “cross-movement strategies” might look like or what organizations are already involved in such efforts, there are many signs that others are heeding this call. I will mention just two. INCITE! Women of Color Against Violence is a formative organization that is a part of the effort to address violence against women of color across a spectrum from state violence to violence perpetrated by individuals. A second, though less programmatic (and newer) response can be found in a recent conference that I had the privilege of helping to organize: Converge! Re-Imagining the Movement to End Gender Violence. Converge! similarly focused on the “system intersectionality” of neoliberal government policies (criminal justice, immigration, child welfare, labor) that create and foster gender violence and simultaneously diminish the resources of poor women, particularly poor women of color, to respond to violence.

  1. See, e.g., Shattered Bonds: The Color of Child Welfare (2002); Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997). []
  2. Those interested in more discussions of these intersections of neoliberal policy can find many excellent books on the topic. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Kaaryn Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (2011); Beth Richie, Arrested Justice: Black Women, Violence, and America’s Prison Nation (2012); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009). []
  3. For more discussion of this concern, see Donna Coker, Addressing the Real World of Racial Injustice in the Criminal Justice System, 93 J. Crim. L. & Criminology 827 (2003) and Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 Pepp. L. Rev. 905 (1993). []

The Rise of Automated Policing

Scholars analyzing immigration enforcement often do so in a way that treats the matter as separate from more general trends and developments in law enforcement. In fact, however, many of the trends in immigration enforcement are mutually reinforcing of, and in evidence throughout, various law enforcement domains. Anil Kalhan neatly captures that reality in his article Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy. In so doing, he opens up a discussion that has significant implications for both criminal justice and immigration law scholarship.

In his article, Kalhan critiques the phenomenon that he labels “automated immigration policing.” As he defines them, “[a]utomated immigration policing initiatives deploy interoperable database systems and other technologies to automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary law enforcement encounters and other moments of day-to-day life.” (P. 1108.) As his article makes amply clear, reliance on automated-policing techniques is not limited to immigration policing. He draws upon the work of numerous federalism, privacy, and criminal procedure scholars to highlight the ways in which automated immigration policing is of a piece with general developments in governmental surveillance and law enforcement.  In immigration policing, as in other law enforcement endeavors, a broad—and elastic—range of law enforcement agents access growing stores of personal data accumulated by local, state, federal, and private actors, in the service of multifarious and open-ended law enforcement ends.

Kalhan argues that “[b]y using technology to make determinations of immigration status and the collection, storage, and dissemination of personal information for immigration enforcement purposes automatic, widespread, and continuous, automated immigration policing effects a basic shift in the nature of both ‘immigration federalism’ and ordinary law enforcement activities.” (P. 1109.) To illustrate his point, Kalhan begins by examining the history of state and local participation in immigration policing. He argues that, notwithstanding the rhetoric of the Court’s recent decision in U.S. v. Arizona, over the past two decades, an equilibrium had developed that allowed states and localities to opt into immigration policing under the supervision of the federal government. This equilibrium also created space for states and localities to develop integrationist policies and to opt out of cooperative immigration enforcement. He argues that recent developments have undercut that equilibrium. Federal automated immigration policing initiatives, including the Secure Communities program and the National Crime Information Center’s (NCIC) Immigration Violators File, undermine this equilibrium by making “immigration status determinations by law enforcement automatic, pervasive, and effectively mandatory.” (P. 1110.) With the national implementation of Secure Communities, every arrestee is automatically checked against a DHS database for potential immigration violations. The NCIC Immigration Violators File reveals immigration status to any officer running standard database checks, whether or not that information is desired or sought by the officer, her supervisors, or the local electorate.

Kalhan’s insight is that what is happening in immigration policing is part of a much-broader trend toward automated policing and that it carries many of the same downside risks, including the “costs [that] arise from the inherent fallibilities of automation, the tendency of surveillance mechanisms to be used for purposes beyond those for which they were initially implemented, the displacement of state and local control over information that states and localities collect and share with federal authorities, and the (negative) everyday effects of these initiatives on both law enforcement agencies and the communities being monitored.” (P. 1110.) In the article, he elaborates upon each of these risks in some detail. The problems that Kalhan identifies have been noted and theorized in other contexts—particularly by scholars focused on issues of privacy and constitutional criminal procedural protections—but Kalhan’s article performs a significant service in analyzing immigration enforcement through these existing lenses. Drawing upon the works of immigration scholars, Kalhan points out that the downsides of this method of policing are amplified in the context of immigration policing, “given the heightened vulnerabilities of noncitizens and the limited procedural protections afforded in immigration proceedings.” (Pp. 1134–35.)

Kalhan’s critique forms an important part of a broader discourse concerning the failure of courts to properly conceptualize automated policing systems and the use of big data in policing. Parallels can be seen, for example, in Erin Murphy’s recent analysis of Maryland v. King. Murphy criticized the Court’s application of the Fourth Amendment in a case involving the DNA swabbing of an arrestee. Among other things, she lamented the fact that the Court’s analysis treated this type of investigation as “discretionless,” when in fact the precipitating arrest and charging decisions are nothing if not discretionary.1 In the same way, Kalhan notes (with a hat-tip to Hiroshi Motomura) that the government has promoted the Secure Communities program as eliminating state and local police discretion in immigration screening, when in fact, the “discretion that matters” lies entirely in the hands of officers who can and sometimes do exercise this discretion in ways that undermine equal protection goals. (P. 1141.) In another parallel, Murphy critiques King, and the Court’s recent Fourth Amendment jurisprudence more generally, for failing to adequately address the risks and harms created by governmental databases and for being overconfident in the infallibility and accuracy of those databases.2 Kalhan’s article not only points out that this is also a problem in immigration databases but also illustrates how that problem has spillover effects into general crime control efforts and affects citizens as well as noncitizens. (Pp. 1136–41.) In short, the inadequacies of the Fourth Amendment doctrine to deal with shifts in policing tactics are alive and well in the context of immigration policing.

To address the equal protection, privacy, liberty and federalism concerns that are raised by automated immigration policing, Kalhan ends his article with some suggestions. He calls for “context-appropriate constraints on the collection, use, storage, and dissemination of personal information for immigration enforcement purposes, including limits on secondary uses of information that were not originally contemplated.” (P. 1157.) He also calls for giving states and localities a greater ability to limit the ways in which they use immigration data in policing (P. 1160) and for increasing transparency, oversight, and accountability of automated policing practices. (P. 1162.) These suggestions echo many that have been made in the context of more general policing policies. But far from being duplicative, Kalhan’s work highlights the importance of looking beyond core policing functions to understand the potential scope and the full risks of automated-policing practices.

  1. Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161, 188–91 (2013). []
  2. Murphy, supra note 1, at 194–96. []

Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform

Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012).

Despite reforms in the elements and evidentiary rules concerning rape and sexual assault crimes, successful prosecutions often face more practical narrative problems in convincing the jury of the credibility of complainants when the timing and manner of their accusation falls outside of how jurors may imagine the normal rape survivor would present herself to authorities. The proper place of psychiatric and psychological expertise about what is sometimes denominated “rape trauma syndrome” in trials and proper instruction of jurors in those trials has been the subject of serious critical debate among feminist legal scholars and rape survivors for twenty years. The sharp question of whether individual rape survivors or rape survivors as a class benefit from the ability to describe the rape survivor whose complaint comes “late” or is delivered in a flat and calm affect to police or medical authorities as suffering from a syndrome remains unresolved, and the same dilemma emerges in the domestic violence realm with “battered women’s syndrome evidence.”

Yxta Maya Murray brings us into this long and always troubling debate quite literally with the example of British artist and rape survivor Tracey Emin, whose work is both quoted and depicted in rare law review color photos. This article stands out amongst the many great criminal law articles that I’ve read in the past couple of years because it combines empirical social science, art, and humanities analysis, which gives us new purchase on concrete legal questions that have already received a great deal of both conceptual and empirical research.

The background empirical facts go to the troubling persistence of limited reporting of rapes and sexual assaults in both the US and England, despite decades of official cultural work to validate rape survivors. Perhaps more troubling—even when women victims do report—careful empirical analysis of case survival in several common law countries shows a strikingly high level of case deterioration and termination at both investigatory and prosecutorial stages. Both qualitative and survey research suggests that hostile, or at least insensitive, treatment by frontline workers in both the medical and legal settings is a major contributor to case failure in common law legal systems despite the substantial legal reforms. Evidence suggests this hostility and insensitivity is considerably more acute for victims of color, for those who are homeless, living with mental illness or addiction, gender non-conforming, or are sex workers—factors that can be additive.

In bringing Tracey Emin’s story and art to the discussion, Murray helps to directly address one of the concerns expressed by feminist critics of rape trauma syndrome evidence as it is currently narrated in courts: RTS accepts a normal rape survivor profile drawn disproportionately from victims who are relatively privileged in terms of the variables highlighted above. The product of a longtime affair between her white English working-class mother and her married Turkish immigrant entrepreneur father, Emin and her twin brother grew up facing harsh racial discrimination in a working-class English town during the 1960s and early 1970s. Emin survived repeated sexual assaults as a child at the hands of one of her mother’s lovers (“Chris” who is also called “sex man” in some of Emin’s powerful works of textual art) and at age 13 by a teenaged boy who dragged her down an alley and raped her a few minutes before midnight on a New Year’s Eve as she hurried to get to a local nightclub. After struggling to regain her sense of self through a period of promiscuity and suffering from more rejection and the humiliation of her local peers, Emin eventually won international recognition for a body of highly unconventional genre-crossing art work.

Murray reads Emin’s multiple references to her rapes and her direct calling out of her rapists as, in effect, an imaginary trial, or series of trials, to replace the state criminal justice system that she never sought or received from the English state. These works, some pictorial, others quilts with words, and several hand-written pieces of paper, testify to the assaults and the contexts which enabled them. They also bring us the words of her rapists, who as defendants would likely not have taken the stand, and the real “defenses” they would have relied on to win jury sympathy, many of them turning on the uniquely English misogynist phrase “slag” for a degraded woman who presumably wants or deserves the violent sexual assault she is receiving.

Emin’s work clearly does not constitute a realistic depiction of a rape trial in either England or the United States, but it does give us an aspect of the rape survivor experience that explains the absence of other survivors like Tracey Emin in real trials (which Emin never sought). For those survivors, the prospect of rejection, hostility, or even more violence from the state and its frontline workers overwhelms any promise that the gentler treatment later in court can hope to assuage.

If Emin’s art is her own way to use the trial as a form of ordeal to both seek public justice and heal, she and Professor Murray point us to a different way of understanding the work of those survivors today who do submit themselves to the ordeals involved in even the earliest stages of the legal production of a sexual assault case. Consider the powerful tide of concern among rape survivors and their advocates that has arisen around the accumulation of untested rape kits in American police crime labs. Against the apparent reluctance of legal authorities to pay for testing for DNA in cases that either do not progress or will not turn on a question of identity, many survivors clearly view those kits as a form of public truth that they have gone through a great ordeal to produce.

In the end, the implications Murray draws out for the debate about rape trauma syndrome testimony is a modest but subtle and original one. If the goal is to explain survivor non-conformity, then, victims like Tracey Emin let their subjected position be a creation rather than a pathology; a stoicism willed to protect and ready the survivor for the difficult course of public justice seeking. Those insights are important, but so is the experiment of looking to art in dialog with social science findings to understand the stakes for law.


Andrew Taslitz

Andrew Taslitz

With sadness we note the passing of Jotwell criminal law co-editor Andrew Taslitz who has died at age 57.  (See his obituary here.) Andrew was a graduate of Queens College and the University of Pennsylvania Law School.  After a practice career with the Philadelphia District Attorney’s Office, and in private practice, Andrew spent 23 years at Howard University School of Law.  He joined the law faculty at American University in 2012.  Andrew’s teaching included evidence, criminal procedure, and criminal law.  His scholarship dealt centrally with criminal law and procedure including one book on legal history, Reconstructing the Fourth Amendment: A History of 1789-1868 (2009), as well as Rape and the Culture of the Court Room (1999) and dozens of articles on criminal procedure and criminal law.  One of the most admired criminal law teachers of our time, Andrew’s passion for law and its reform were evident to his students, colleagues, and many readers.