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Imagining Healing and Accountability through Reparations for Police Violence

Alexis Karteron, Reparations for Police Violence, 45 N.Y.U. Rev. L. & Soc. Change 405 (2021).

Reparations for the harmful impacts of policing on Black communities—and other communities of color—attracted attention when it became plank of Black Lives Matter founder Patrice Cullors’ demands for police and prison abolition. However, the Cullors remarks on reparations are more suggestive than definitive for a well-worked out reparations program. Into this void has stepped Professor Alexis Karteron, who recognizes that standard approaches to police accountability work primarily to provide individualized and episodic remedies, despite the police often harming whole communities through their assaults on identifiable individuals. Karteron argues that a reparations framework can contribute to developing community-wide and structural remedies. This reparations approach provides an important alternative to the individualized account of harm and redress familiar in criminal law theorizing, and highlights the special way that reparations can play a role in police accountability.

Karteron’s promotion of community-wide reparationist remedies builds on her discussion of other, more individualized forms of police accountability and their serious limitations. For example, Karteron identifies the serious drawbacks of constitutional tort claims under 42 U.S.C. §1983 and state law equivalents. These lawsuits focus on discrete police harms, one person at a time. The legal system presents often insurmountable informational, financial, and procedural hurdles. For example, state exhaustion requirements, usually under the state’s tort claims act legislation and federal constitutional law, may make it hard for a plaintiff to find counsel willing to represent a victim of police violence. Often, they also have a very short time period in which to secure counsel because of these exhaustion rules. Other legal doctrines, such as standing to bring suit and the statute of limitations, further operate to narrow access to the two major legal remedies: monetary damages and injunctive relief. At best, only direct victims who have suffered an “actual injury” receive compensation, while witnesses, family members, and other bystanders get nothing, even though they may be directly traumatized or otherwise impacted by police violence. To the extent that the community has a remedy through injunctive relief, the scope of injunctions is limited by doctrines disfavoring judicial oversight of the executive branch, and especially law enforcement.

The other ways that communities may seek structural limitations on police violence include federal Department of Justice pattern-and-practice investigations that result in consent decrees between the United States government and county or municipal police forces. However, such investigations are extremely rare, affecting only a handful of the 17,000 police departments in the United States. Furthermore, it is not the community, but the Department of Justice, that sets the terms of the consent decree. A the court, not the community, determines when the target police department is in compliance.

Finally, Karteron notes the limitations of civilian oversight of police departments. These bodies often have limited powers, have limited ability to interact with other bodies with the power to investigate the police, conduct individualized investigations rather than engage in systemic or structural interrogation of the police role, and owe their composition to political influence rather than true representation of community interests.

It is against this backdrop of failed accountability for police violence that Kartron turns to reparations as a remedy.

Karteron identifies a number of remedies that reparationists have historically sought. She especially focuses upon the use of apologies for police violence to build trust with communities victimized by discriminatory policing. Apologies are certainly a start. For example, Professor David Kennedy, a scholar at the John Jay College of Criminal Justice has written for some years on a process that looks a little like reparations, which requires the police to acknowledge and account for historical discrimination against the communities they police as a means of fostering community trust. However, apart from Professor Kennedy’s work, there has been little attention to reparations as a remedy for police violence in the academic literature.

From a reparations perspective, apologies are best placed within a larger effort to identify both the individual and systemic nature of police violence. Victims of police violence often seek to expose the identity and actions of those who attacked or tortured them, or who killed their family members. This form of accountability is often sorely lacking. Without accounting for the individuals and institutions that produced the harm, those individuals and institutions are rendered invisible or able to deny or obscure their role in police violence. Worse, failures of accountability preclude efforts to ensure one of the first goals of reparations, which is to prevent these forms of police violence from happening again.

Karteron’s core insight is that reparations often involve group- or community-based remedies rather than individual ones. Providing a more detailed account of reparations that addresses the idea of intergenerational historical discrimination against groups and communities would provide some clarity to Professor Karteron’s useful, group-focused model.

A reparations framework helps us recognize that police violence is often structural, not individual, and directed towards undermining the power and self-sufficiency of communities of color, not simply individuals. Policing often works to enforce territorial boundaries, as well as political power. All of this is designed to keep poor Black, Brown, and Indigenous people in their place. Viewed this way, policing reparations would challenge not only the individual-payment model of Section 1983 and some reparations movements, but also the standard, top-down models of federal settlement plans and oversight commissions, which keep power away from the impacted communities, and place the power to determine remedies within the hands of court-appointed monitors or county- or municipal-appointed commissioners. A proper reparations model would instead demand that the body determining remedies is constituted from the members of the impacted communities who can then determine for themselves what sorts of remediation is warranted.

Karteron suggests that reparations might fit with demands to defund the police. Defunding the police may count, indirectly, as reparations , but transferring resources from one municipal or county agency (the police) to another (mental health, etc.) need not occur in a manner that directly empowers the communities victimized by police violence. Rather than the community members having a say in the way these resources are used, the state, county or municipality still controls spending. Karteron’s reparations focus suggests that defunding the police would need to be community-directed to fit more snugly within the reparations framework.

The reparations focus may also encourage some acknowledgment of class differences among communities susceptible to police violence. For example, it may be a feature of the social construction of race that certain groups are especially vulnerable to state-sponsored violence; this vulnerability is shared by all members of the community just because of they are Black or Brown or Indigenous. However, that vulnerability need not be shared equally by all members of these communities. The burdens of police-dispensed state-sponsored violence may fall especially heavily on poor Black, Brown, and Indigenous people. Accordingly, in terms of vulnerability to repeated acts of police violence, members of these impoverished communities of color, especially within large metropolitan areas such as Los Angeles, New York, Chicago, and Houston may have more in common with each other across racial lines than folks within each racial group. That fact alone complicates some of the calculus of the nature of reparations and who is eligible to receive it. It also argues for both intra- and inter-community coalitions to demand reparations when police violence is the issue.

For example, in Los Angeles County, extreme, persistent police violence—as documented by journalists, decades of reports by public and private agencies, and the Los Angeles Sheriff Civilian Oversight Commission—has inflicted serious, and often fatal injuries upon members of low-income Black, Brown, and Indigenous communities across Los Angeles County: Lancaster and Palmdale in the Antelope Valley; East Los Angeles, Compton, South Los Angeles, and Lynwood. What all of these communities have in common, apart from being terrorized by Sheriff Deputy Gangs is that they are poor and non-white. Reparations for these communities must address not only individualized trauma and loss, but also the political, social, cultural, economic, and health impacts upon these communities. As Karteron’s article makes clear, simple damages payments are not enough for these types of communities, either to stop the violence or compensate the communities for what is a structural problem. Something closer to a defund-the-police movement that puts impacted community members in positions of power is needed to address the County’s abject failure to end police violence, identify, terminate, and prosecute the wrongdoers, and provide some sort of healing for the individuals and communities who are on the receiving end of their acts of state-sanctioned terror.

Many contemporary social justice organizations have added reparations to their platforms without explaining exactly what reparations means. At the very least, Karteron’s idea that it includes a community-focused form of relief is a significant advance in identifying some new ways forward to specify reparations for police violence as a group-based remedy for structural discrimination. Her work should inspire others to take up the mantle of imagining what healing and accountability looks like for these vulnerable communities subject to state violence.

Cite as: Eric J. Miller, Imagining Healing and Accountability through Reparations for Police Violence, JOTWELL (February 21, 2024) (reviewing Alexis Karteron, Reparations for Police Violence, 45 N.Y.U. Rev. L. & Soc. Change 405 (2021)), https://crim.jotwell.com/imagining-healing-and-accountability-through-reparations-for-police-violence/.

Open Prisons: For a Less Harmful Prison

Kristian Mjåland, Julie Laursen, Anna Schliehe & Simon Larmour, Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, 20 European J. of Criminology 1641 (2021).

The paper I am reviewing is noticeable because it focuses on “open prisons.” Generally, prison scholars tend to speak and write about “prisons,” and when comparing among countries, the comparison tends to be limited to imprisonment rates. In some rare cases the sentence length is also discussed. In their article Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, authors Kristian Mjåland, Julie Laursen, Anna Schliehe and Simon Larmour expand the discussion by addressing the type of prisons. I welcome this opportunity to talk about open prisons.

The paper sets out to determine if open and closed prisons share the same basic characteristics, or if, on the contrary, one could defend that open prisons are experienced as less harmful. In order to answer this question, the paper uses 728 interviews to find out prisoners’ subjective experience of being imprisoned in Norway or England and Wales in an open or closed prison. The paper also explores the use and functions of open prisons in both countries.

It is useful to begin with a definition of what is meant by “open prison.” In some Scandinavian countries an “open prison” generally means a building with less security and more autonomy inside the building. In other European countries, like Spain, an ‘open prison’ emphasizes contact with the outside world, and therefore the person must be carrying out some activity outside of the facility, only returning to the building to sleep (Martí, 2019). This point reminds us of the necessity of looking behind the labels to find out how ‘open’ an open prison is.

Regarding their function, open prisons can be used at the last part of the sentence, as a way of progression for longer sentences ( and reintegration function), or as entry points, where all short sentences, for example, are served. In England and Wales, being sent to an open prison requires a risk assessment finding of low risk, and the individual must have less than two years left to serve. In Norway, short sentences (up to two years) usually can be served in an open prison, and regarding longer sentences, the law mandates consideration of the possibility of being sent to an open prison at the last part of the sentence. Norway’s policies thus favor having individuals finish their sentences in open prisons.

Those different policy choices explain the different uses of open prisons in both countries. Open prison capacity is 32% in Norway, and 6.5% in England and Wales. Direct entries to open prisons are 65% in Norway, 0% in England and Wales. Fifty percent of the sentenced population spent some time in open prison in Norway, 5% in England and Wales. Release from open prison amount to 54% of releases in Norway, 6.6% in England and Wales. No wonder that the authors assert that when speaking of what makes Norway ‘exceptional’:

“The extensive use of open prisons, and the harm reduction they produce, is the single most important contributor to Norway’s more human punishment practices” (P. 17.)

I turn now to the final point: how open prisons are in fact experienced by the prisoners. I am little bit weary of the literature that focuses on the pains and frustrations of open prisons because it can lead us to some desperation. Like closed prisons, open prisons are also subject to strong criticisms.

Of course, open prisons are not “harm-free” entities. As the relevant literature has pointed out, there is the extreme of being with “one foot out, and one foot in,” and having to be always very careful, and exercising an enormous and continuous amount of self-regulation (like “being put continuously on trial”). In addition, Martí (2019) points out the intrusion experienced by the prisoners, having to follow a set of rules in their daily life outside prison that impacts in their personal and family life (looking for a job and keeping it, no company of suspect friends, no drugs), and that they feel are ‘nobody else’s business’.

In an interesting turn, and without excluding some specific pains of open prisons, the authors Contrasts in Freedom find out that the main harms in open prisons are similar to the ones experienced in closed prisons. For example, the five main problems mentioned by prisoners in Norway are the same: Missing somebody, missing social life, feeling that you have let down your family/friends, feeling that the length of your sentence is unfair, feeling that your life is being wasted. So, one could think that after all “a prison is a prison is a prison.” However, these same problems are experienced in a less severe and acute way than in closed prisons. As the authors state

“It seems clear then, that open prisons are capable of alleviating at least some of the pains of imprisonment” (P. 12.).

As a criminologist with a law degree, I was surprised that the authors did not touch on the issue of who is to decide the classification of prisoners (in open or closed prisons). In some countries this is decided by the sentencing judge, but in Spain this classification is decided by the Prison Administration. This is no minor issue, since these types of imprisonment are so different that one can say that they really are two different kinds of punishments. This, of course, concerns the issue of proportionality. When the judge sentences to three years imprisonment, it is not the same to serve three years in a closed, ordinary prison as in an open prison (not to mention if the administration classifies you in a solitary regime!).

The argument in favor of the classification by prison administration is that this task involves an “individualized evaluation” based on “treatment needs.” I am however very skeptical since the figures at least in Spain have been approximately the same for years: 80% serve in closed ordinary prison and 20% in an open regime, which seems to indicate that by default everybody is placed in an ordinary prison.

The possibility of using open prisons for short sentences, and mandating, as Norway does, consideration of the use of open prisons at the last part of the sentence by law, or as part of sentencing guidelines, might also help alleviate an additional problem: that frequently sentenced people end up in a closed prison not because of the gravity of their offence, but because they don’t meet the requirements used to classify them in an open prison (namely, having a job, family support, and being drug free). In this way, it seems obvious that what is being punished is social exclusion.

In sum, open prisons are not without problems, but as the authors state, they do seem to have many advantages: they are less harmful, more cost effective, they might promote reintegration, and for those concerned with the punitive bite, they are still experienced as a (prison) punishment.

Cite as: Elena Larrauri, Open Prisons: For a Less Harmful Prison, JOTWELL (January 18, 2024) (reviewing Kristian Mjåland, Julie Laursen, Anna Schliehe & Simon Larmour, Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, 20 European J. of Criminology 1641 (2021)), https://crim.jotwell.com/open-prisons-for-a-less-harmful-prison/.

Costly Criminal Record Relief

Amy F. Kimpel, Paying for a Clean Record, 112 J. Crim. L. & Criminology 439 (2022).

As mass incarceration and criminalization impact more Americans, efforts to address the impact of a criminal record on an individual have become more popular. We’ve come a long way from simply “banning the box” on employment applications. Today, states across the country are expanding access to criminal records relief for those touched by criminal law’s expanding web of enforcement. Diversion and expungement have emerged as two promising reforms to further that effort.

But how does criminal record relief work, exactly, and who benefits from it most? Amy Kimpel addresses these questions in her recent article, Paying for a Clean Record. Kimpel demonstrates that, through participation in diversion and expungement programs, defendants often incur various fees and fines that make gaining a clean record costly. This tendency disproportionately burdens poor and black and brown defendants such that these reforms threaten to entrench racial caste in the United States. Through her descriptively rich analysis of these two seemingly different practices, Kimpel help readers understand the complexity of criminal legal reform in the United States.

Diversion and expungement refer to two different forms of criminal record relief. Diversion refers to programs that identify defendants who have been arrested and charged with an offense, but they are given a “second chance” opportunity to avoid a criminal record by completing various requirements in lieu of pleading guilty and receiving a criminal sentence. For example, a defendant may enter drug treatment or domestic abuse counseling as part of a diversion program and, upon completion of that program, all charges would be dismissed with prejudice. Expungement, in contrast, refers to the process of erasing or sealing a criminal record after conviction. This includes conviction and arrest records. In recent years, many states have expanded the categories of defendants who can benefit from this process. Some have made expungement automatic.

Both forms of criminal record relief are costly. As Kimpel describes, prosecutors or legislatures impose diversion application and enrollment fees. Participants also pay separate costs for the programming and educational classes required in the diversion program. These costs accumulate on top of additional charges like court costs, supervision fees, prosecution fees, drug lab fees, and public defender fees that are increasingly imposed upon defendants throughout the criminal process. Expungement is no better. Obtaining a copy of one’s own criminal record from state law enforcement agencies is the first step to expungement, and it can cost anywhere from $30 to $550 per petition. Many states require that the defendant have paid off all fees, fines, and restitution associated with the original case before proceeding with the expungement process. Other costs included in the process range from the cost of fingerprinting, getting the application notarized, and getting a certified copy of the conviction record. Such costs can double the price of a petition in some jurisdictions. These costs impact how defendants travel through the criminal legal process. As Kimpel demonstrates through vignette, the costs shape whether one enters a diversion program and when (and if) one can access criminal record relief post-conviction.

These costs, alarming on their own, are particularly concerning when placed in social context. Criminal record relief exists on an uneven playing field within the criminal legal system and society. Black defendants are more likely to be arrested for drug offenses and less likely to be able to pay their bills if they encounter a $400 emergency. As result, the fee structure around criminal record relief is likely to amplify racial disparities, not mitigate them. Additionally, the fee structure motivates perverse financial incentives. Diversion programs can be quite profitable for prosecutors and legal administrators, which can create a greater demand for revenue and prosecutions. Further, access to a clean criminal record is even more valuable in social context. With the expansion of the criminal legal apparatus and technological advancements, criminal records shape society in profound ways. For example, criminal background checks are used to employ, educate, house, and more. Because criminal records operate as a means of social exclusion, limiting criminal record relief based on ability to pay will entrench preexisting racial inequality.

Kimpel’s article leaves little room for doubt that the financial aspects of criminal record relief is a problem. Yet it is through her solutions that Kimpel signals the complexity of criminal legal reform for the reader.  On the one hand, she urges more study on the intersection of poverty and criminal record relief programs. She suggests access to diversion and expungement should be expanded and offered cost free as a default, or at least with some connection to indigency.  On the other hand, she recognizes the threat that expanding these programs may legitimate the expanded criminal legal apparatus.

Interestingly, Kimpel points to emerging litigation as a potential way to thread the needle between both concerns. She identifies existing Equal Protection and Eighth Amendment challenges to diversion and expungement programs on the basis of financial need. But the promise of this litigation, according to Kimpel, lies not just in winning the cases. She explains how litigants may be “winning by losing” in the sense that the cases shape statutory and policy efforts to expand criminal record relief. Such litigation can also illuminate new ways to critique the criminal legal apparatus. It is this willingness to operate on multiple fronts when imagining a pathway forward in criminal legal reform that makes Kimpel’s article so intriguing and inspiring.

Cite as: Jessica M. Eaglin, Costly Criminal Record Relief, JOTWELL (December 6, 2023) (reviewing Amy F. Kimpel, Paying for a Clean Record, 112 J. Crim. L. & Criminology 439 (2022)), https://crim.jotwell.com/costly-criminal-record-relief/.

America’s Punishment Addiction Explained

When you think about why people are convicted of a crime, it seems absurd to say, “because there are bad people” or “because people do bad things.” Such responses, by themselves, would be an over-simplification that overlooks key contributors. For example, some might commit crimes due to the inability to feed oneself or one’s family. It is also true that some people confess to crimes they didn’t commit, often just to get out of the criminal system. Some people did nothing wrong at all and were wrongfully convicted. Similarly, mass incarceration defies any singular explanation.

In Mass Incarceration Nation, former prosecutor and law professor, Jeffrey Bellin, seeks to describe the primary factors that have brought us to this place in history. In the last few decades, the United States has become a world leader in incarceration, such that prison systems in places like Texas and California rank among the largest systems in the world. While explanations about mass incarceration proliferate, Bellin identifies multiple contributions through a more nuanced approach to understanding the problem. While many might consider race and class as the driving factors, as this work shows, the picture is more complicated.

One of the first useful contributions Bellin makes is to define the term “mass incarceration.” He defines “mass incarceration” in historical terms, noting that we have never experienced the present volume or rate of incarceration. He also defines it in comparative terms. Put simply, when our punishment practices are compared to other countries, we are exceptional, even among the top carceral states. Bellin notes that our excess, both in the number of people incarcerated and the grossly disproportionate impact on minority communities, “raises important questions about the legitimacy of the law enforcement enterprise and…hints that there is more going on than crime and punishment.” (P. 14.)

Equally critical is the need to distinguish the terms “criminal justice system” and “criminal legal system.” While it might seem like semantics, there are important reasons to recognize the difference. For Bellin, there are two types of cases pouring into criminal courts. The first set of cases is epitomized by crimes that society has no choice but to address—homicide, sexual assault, and crimes that create serious public harm. The system that deals with such crimes should be designated the criminal justice system, particularly because there is an element of justice involved, including justice for the victims. In contrast are crimes that evolved from policy-making, which try to discourage certain behavior through criminal law. Despite the fact that these types of cases, epitomized by drug crimes, go through the same adjudicative process as homicides—they are really about enforcing the law, not justice. Hence, the criminal legal system is better suited to describe those types of laws designed to stop people from doing things, as opposed to malum in se type crimes, which are harmful because they result in injustice.

With these ideas in place, Bellin considers the “building blocks” of mass incarceration. One of these crucial blocks was the desire of elected officials to appear “tough on crime.” Republicans initiated this initial shift toward penal harshness coupled with “law and order” rhetoric, which Democrats soon matched and tried to outdo. The Democratic embrace of tough-on-crime politics culminated in the 1994 Omnibus Crime Bill, which was 356 pages long and added crimes, expanded punishment for existing crimes, added police and prison funding, and stripped Pell Grant funding from people in prison, among other provisions. Together Republicans and Democrats created “bipartisan severity,” which ratcheted up punishment and directly contributed to mass incarceration.

Other factors, including legislation, led to severe consequences. Of these was the shift from indeterminate sentencing to determinate sentences, which remade the system such that “people who were convicted of existing crimes served more prison time.” (P. 49.) While there was also legislation that encouraged arrests and prosecutions and created longer sentences, shifting to determinate sentencing stripped parole boards of the ability to release individuals who no longer posed a threat to society, a power that legislators now usurped.

The problem of race is inextricable from the question of mass incarceration. Bellin’s work is particularly important because it tempers the notion that race is the main or only culprit. Instead, he engages Michelle Alexander’s The New Jim Crow and offers a compelling account of how demographic differences in offenders for some offenses complicates the narrative. Black defendants are punished disproportionately for violent offenses, and Whites tend to be punished for non-violent offenses. These fact are important to recognize, since most criminal reform excludes violent crimes. Moreover, Bellin marshals data to show that across the country, particularly in places where Whites predominate, imprisonment of Whites was drastically increased as well, even if it occurred in states with smaller populations in general.

However, this is not to say that Bellin thinks Alexander’s work lacks explanatory force with respect to race. Rather, he sees race as more relevant to those crimes that make up the criminal legal system, where “officials enjoy the greatest discretion” and where “we would expect unwarranted bias to appear.” (P. 81.) Thus, a race-centered account fits best with Alexander’s focus on the War on Drugs that has overwhelming impacted Blacks above all. Bellin also invokes events in Ferguson, Missouri to give a sobering look at how “the more discretionary an aspect of law enforcement, the more we can expect to find the influence of conscious and unconscious prejudice.” (P. 82.) He cites a DOJ report on Ferguson, Missouri, which gives an extreme illustration of the point. As a town that struggled financially, Ferguson used the criminal system to generate revenue, turning the system into a “piggy bank” for the town, dramatically illustrating “how a small town’s application of race-neutral criminal laws could, in fact, re-create Jim Crow.” (P. 82.)

Although there are multiple persuasive pieces to the story Bellin tells, perhaps the most convincing is the final section entitled “The Mechanics of Mass Incarceration.” (P. 93.) In this part, the author explains the role police, prosecutors, and judges play in fueling the process. He uses the metaphor of a “prison road” that leads to prison to describe each actor’s role in the system, including more police making more arrests, prosecutors going after more low-level offenders, and judges seemingly unconcerned with diverting people from prison. These actors exacerbate other factors that contribute to mass incarceration.

Of all the points the author makes, the strongest is to show that “tough on crime” just doesn’t work; that is, deterrence doesn’t work. Using crime-funnel statistics, he demonstrates that only five percent (5%) of offenders of a particular crime will face incarceration. In other words, only five percent of robberies ever result in the offender’s incarceration. The evidence suggests the system is not tough on crime, but rather, just tough on those five percent.

The author proposes sweeping ideas to remedy the mass incarceration problem, the most crucial of which is to “(mostly) abolish the feds.” Bellin sees a great need to reduce federal law enforcement and prosecution. While the federal prison system is dwarfed by the number of people held in all state prisons, it is as important a contributor to mass incarceration as the largest state and is the “easiest place to see that Mass Incarceration is about policies, not crime.” (P. 170.) From the author’s view, the federal government must “abandon its decades-long focus on drugs, weapons, and criminal immigration enforcement.” (P. 173.)

Bellin proposes other measures to reduce prison populations. He believes that shrinking the infrastructure of the criminal legal system is the most obvious candidate, “to change the law so that violations of essentially regulatory rules do not lead to incarceration.” (P. 175.) Other potential for reform is to reduce admissions to incarceration and shorten stays. There are multiple mechanisms to reduce admissions including decreasing police activity, relying more on drug courts, decriminalizing drugs, and increasing prosecutorial dismissals, among others. Finally, the author sees two main levers for shortening prison stays including reducing the actual sentences announced by judges and increasing the frequency of early release. More specifically, since data show that individuals age out of crime, he proposes making twenty-one years the longest possible sentence noting, “long sentences serve a purpose. They assure people that society takes crimes seriously. But relative, not absolute, sentence length is the key to this symbolic exercise.” (P. 193.)

This book is a solid introduction for anyone wanting to see the big picture about mass incarceration and deserves to be widely read. It combines valuable statistics with common sense arguments to lay out a comprehensive account of this complex process. Despite its nuance and academic structure, the work is accessible and written in clear language, which makes it as useful for law students and stakeholders in the criminal system as it is interesting for the lay reader.

Cite as: SpearIt, America’s Punishment Addiction Explained, JOTWELL (November 6, 2023) (reviewing Jeffrey Bellin, Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How it Can Recover (2022)), https://crim.jotwell.com/americas-punishment-addiction-explained/.

Europe’s Technology-Driven Borderscape

Valeria Ferraris, Entangled in the technology-driven borderscape: Border crossers rendered to their digital self, 20 Eur. J. Criminology 14773708221086717 (2022).

As a (socio-)legal scholar interested in the world of borders and migration, I always feel rather inapt when people ask me about the ‘technological dimension’ of bordering. This dimension, although extremely central and crucial to understanding current day bordering practices both from a legal and an empirical point of view, seems to be an area that requires specific expertise that I do not have. Therefore, I am always on the lookout for articles to fill in this gap. Finding Valeria Ferraris’ article that not only touches upon the legal and technological aspects of the digitization of borders in Europe but that also reflects upon this development through a more sociological lens felt like finding a little gem that allowed me to feel updated on this ever-moving and developing sub-area of border studies. And, as is often the case, the article shows how, for legal scholars, it is also crucial to get an insider view and understanding of the workings of the law in practice. With developments in the world of data and technology moving so rapidly, it is important to keep track on whether the law – and in particular legal protection – is moving at a similar speed.

The article brings together the author’s multiple year-studies of the transformation of border control practices into practices driven by data processing and guided by all sorts of technologies. The article adds to that existing line of research an interesting new take on the concept of border performativity as used by Wonders in her 2006 publication Global flows, semi-permeable borders and new channels of inequality: border crossers and border performativity. As Ferraris explains, while citing Wonders, the concept of border performativity aims to ‘explain how borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification. This dance is not only choreographed by state policies and laws, but it is also increasingly shaped by larger global forces’(P. 5, citing Wonders 2006: 64). Whereas the notion of border performativity has been used and reflected upon by various scholars working in the ever-expanding domain of border and migration studies, Ferraris adds to the existing literature by investigating ‘how data transforms both the State and the migrants’ border performance’ (P. 5).

Before discussing some of the author’s findings, I want to highlight one of the other aspects of the article that deserves special appreciation. In the section ‘Methodological background’ the author explains how the current article came into existence: It is the result of looking at data that had been collected through desk research and field work for different projects in a different, more reflexive, way. As the author explains on page 3, this new way of looking at her ‘old’ (as in: previously collected for different projects) data, allows her to critique her previous research experience and, in so doing, “1) to go beyond the focus upon the risks for fundamental rights of the digital border control which has been at the core of my previous research, 2) to shed light on the crucial point of this article, namely, the challenges of the new datafied migrant to transform the border from below, and 3) to find new insights for further research questions.” It is very valuable for fellow researchers to see how the author made the turn from, or perhaps better said added a perspective to, a more legal understanding of the digitization of migration and border control. Apart from showing the additional level of complication that needs to be brought into legal discussions on bordering practices to fully grasp the implications of the increased use of data and technology, it also illustrates the value and the importance of re-using empirical data that was collected with (an) other question(s) in mind.

While giving a state-of-the-art overview of the broad range of technological ‘barriers’ that have been erected in Europe to ‘manage’ the mobility of people, the article illustrates how the walls of Fortress Europe might be invisible to the outside world, but in reality, very present through a wide array of ‘systems’ filled with a broad variety of data on individuals, their migration journeys, biometrics, etc. Although the idea of an actual wall following the US-Mexico example is currently being debated as well, it is clear that whereas such a wall would be largely symbolic, the data-walls around Europe are very real in the role that they play in social sorting processes.

In reflecting on the impact of technology on border performativity, Ferraris specifically highlights the impact of the growing interoperability of migration databases which she sees as the ‘final step towards the EU technology-driven borderscape’ (P. 6). Whereas many of the IT systems used as part of this borderscape were developed separately for narrow and specific purposes and with a narrow focus on migration control, Ferraris shows how this has drastically changed over the years. The databases have become multi-purpose databases used interchangeably for migration control and border control, as well as for reasons of crime control. This raises a set of questions regarding the legal protection and access to justice of people on the move who get captured in the maze of this digitized net of social control.

Yet, besides this Ferraris raises the interesting question what this means for the possibility to ‘transform borders from below’. As a result of the ‘datafication’ of migrants, there seems to be even less room for humanizing migrants, as well as less room for pushing back against ‘the system’ which no longer relies on the actions of human beings but more so on the assessments, calculations, and interpretations of technological devices. The system is no longer the bureaucratic apparatus in which street-level bureaucrats, while using their discretion, can be seen as the real policy makers, but an IT system where ‘Computer’ says either ‘Yes’ or ‘No’. This new ‘data border’ raises new legal questions and challenges that, according to the author, will require migrants to seek the assistance of legal experts that are not only versed in migration law, but also in matters of data protection, and who have a solid understanding of the workings of these complex systems. Although the author thus foresees less legal pushback – on an individual case-law level – against the new data-border around Europe, she does end her rather dystopian analysis with the open question whether ‘failure and loopholes in the implementation of the interoperability between systems could provide room for manoeuvre’ (P. 14). The answer to that question remains to be seen. Yet, asking the question is also to be seen as a call for further research not only into the legal reality of the digital border, but to also carefully study its practical implementation.

Cite as: Maartje van der Woude, Europe’s Technology-Driven Borderscape, JOTWELL (October 10, 2023) (reviewing Valeria Ferraris, Entangled in the technology-driven borderscape: Border crossers rendered to their digital self, 20 Eur. J. Criminology 14773708221086717 (2022)), https://crim.jotwell.com/europes-technology-driven-borderscape/.

In Search of Reason

For many years now, I have looked to the work of Devon W. Carbado for guidance on how to read, understand, and teach Constitutional Criminal Procedure. In his latest book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Professor Carbado summarizes, expands upon, and refines many of the useful insights that he has offered to his readers over the past decade in his law review articles. This book is a readable introduction to the Fourth Amendment, and one that would be a great teaching tool in a Criminal Procedure class.

Unreasonable offers a systematic critique of the Supreme Court’s interpretation of the Fourth Amendment over the past fifty years. A central claim of the book is that conduct that is often described in popular discourse as “police misconduct” is, in fact, entirely within the legal bounds of constitutional criminal policing. Courts have interpreted the Fourth Amendment in ways that allow police to engage in intrusive, preemptive, and racially discriminatory policing practices. While Carbado does not discount the problem of police acting outside of the bounds of the law, his focus is on the many ways that unreasonable police conduct is promoted and encouraged by law. His goal is to articulate an alternative vision for the boundaries of constitutional policing.

The body of the book consists of seven chapters, the first five of which are framed around a case or set of cases that set forth baseline rules of policing. Chapter 1, Pedestrian Checks, explores several cases that facilitate coercive police encounters with civilians in the absence of any sort of individualized justification. The chapter explains how police can stop and question people about their activities and immigration status, search homes and vehicles after obtaining nominal (and generally coerced) “consent,” and even chase someone, without having any legal basis for singling that person out in the first place. This Chapter explains how race often motivates these initial encounters, and how racial dynamics shape how they play out, even as the Court’s analysis in cases approving this type of policing ignores the racial context for these policing practices.

Chapter 2, Traffic Stops, describes how pretextual stops, embraced in cases like Whren v. United States, generate substantial racial disparities in the policing of vehicular traffic. The chapter also illustrates how racially-motivated investigative stops can quickly escalate into questioning, searches, and seizures, including (thanks to Atwater v. City of Lago Vista) the arrest of people who have committed no arrestable offense. Arrests, in turn, pave the way for extreme governmental intrusions, including deprivation of liberty, of course, but also legal swabbing for DNA and strip searching.

Chapter 3, Stop and Frisk, explores how the “stops” and “frisks” approved by the Court in Terry v. Ohio in 1968 are deployed in racially discriminatory ways, sometimes with deadly consequences. Chapter 4, Stop and Strip, uses the case of United States v. Montoya de Hernandez to explore how the logics of Terry have been used to justify strip searches upon mere “suspicion” of criminal conduct, and in the absence of a judicial warrant, in cases where the government’s interests are purportedly elevated – in the case of Montoya de Hernandez, because the search takes place at an international border.  In both chapters, Carbado illustrates the racial impacts of these decisions. Chapter 3 highlights the data on the racial disparities of stops conducted by the New York Police Department. Chapter 4 includes the stories of lawsuits brought by Black and Latina women against US Customs and Border Protection agents in recent years. These lawsuits uncovered data revealing significant racial and gender disparities in who gets stopped, and the suits themselves highlight the abusive nature of officials’ conduct during these stops.

Chapter 5, Predatory Policing, explores cases that have greenlighted abusive civil asset forfeiture practices, and have permitted the collection of excessive fines and fees from individuals facing criminal charges. The chapter highlights the insufficiencies of the exclusionary rule as a deterrent remedy to police misconduct, including misconduct in the form of sexual predation.

The final two chapters explore the possibility of alternative visions of the Fourth Amendment. After a brief introduction, Chapter 6 reprints in full the Supreme Court’s unanimous decision, authored by Justice Scalia, in Whren v. United States. As discussed in Chapter 2, that case allows for pretextual investigative stops, including stops clearly made as a direct result of racial profiling. Chapter 7 reimagines the Whren decision. The rewritten opinion centers the relationship between policing practices in the U.S. and racial subordination, tracing the long history of judicially tolerated racial discrimination in cases such as Korematsu and Brignoni-Ponce. Drawing on the logics of Brown v. Board of Education, the rewritten Whren decision opines that it seems “plain wrong that the Fourth Amendment, which is intended to ensure that police conduct is reasonable, would invite, let alone permit a rule that inoculates racially discriminatory policing – including discrimination rooted in racial animus – from constitutional scrutiny.” (P. 211.) This Whren opinion braids together equal protection doctrine and Fourth Amendment reasonableness to bring the highest level of judicial scrutiny to bear on racially discriminatory policing practices.

When reading these final two chapters, it is difficult not to wonder how much difference doctrine actually makes. Would a rewritten Whren transform US policing? But Unreasonable is more than a clear and sustained doctrinal critique. This book is also a window into how race is made, and racial hierarchies maintained, through policing in the United States. Professor Carbado is one the foremost Critical Race Theorists working on questions of criminal procedure, and his brilliance is on full display in this book. In the narrative tradition embraced by CRT, the prologue opens with the story of Carbado’s own first encounter with police in the U.S. – a moment that he has described here and elsewhere as his racial naturalization; the moment when he, an immigrant from the United Kingdom, “became a Black American.” (P. 1.)

The book’s jacket also reminds the reader that Unreasonable was “published on the second anniversary of the global protests over the police killings of George Floyd,” and the author is clearly conscious of the interaction of doctrinal arguments and broader calls for police reform and abolition. Each chapter underscores this point. The policing excess and violence in Ferguson, Missouri, threads through several chapters, along with the stories of Black people killed by the police, or subjected to other forms of state violence. Carbado also shows the percussive effects of decisions that permit policing excesses in the name of national security and immigration control.

The text also nods to abolitionist claims. While ultimately noncommittal about the broader project of prison-industrial complex (PIC) abolitionism, Carbado endorses the narrower goal of “abolishing or minimalizing racially subordinating forms of power Fourth Amendment law allocates to police officers.” (P. 22.) The book focuses on doctrine, but thankfully, it does not try to convince the reader that the problems of policing can be fixed through the courts alone. Carbado writes: “I do not intend to suggest that Black people can find our way out of being over-policed through legal reforms alone – we certainly cannot. But we cannot afford to cede the terrain of law completely.” (P. 195.) Carbado is fully aware that his recommended changes to doctrine must be accompanied by broader changes to funding, governance structures, and social relations. But he also embraces the positive legal orientation of CRT – one that does not give up on the law, but that instead calls upon us to struggle for its amelioration, even as we recognize its limitations.

Cite as: Jennifer Chacón, In Search of Reason, JOTWELL (September 14, 2023) (reviewing Devon W. Carbado, Unreasonable: Black Lives, Police Power, and the Fourth Amendment (2022)), https://crim.jotwell.com/in-search-of-reason/.

Racial Equity, Reform, and Abolition in the American Criminal Legal System

Trevor George Gardner, Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. __ (forthcoming 2023).

After decades of a one-way ratchet towards more punitive criminal law policies that disproportionality punished African Americans, reform and transformative agendas have gained some momentum in the United States. Between 2010 and 2020 the combined state and federal imprisonment rate decreased 28%. After many years of having the largest incarceration per capita in the world, as of January 2023, the United States ranks fifth in the world, according to some sources. In 2007, the incarceration rate per 100,000 of Black people was 1,143, while in 2020 it was 662. This reduction of 42% was larger than the 35% reduction for all groups in the same period.

However, as Professor Gardner documents in his article, Rethinking Racial Equity in Criminal Procedure, deep racial disparities in the American criminal legal system remain. African Americans continue to be killed by the police, stopped, arrested, jailed, and incarcerated at higher rates than white Americans. In his piece, Gardner critically and lucidly discusses the two main ongoing efforts to advance racial equity within criminal procedures: the reform platform and the abolition platform.

According to Gardner, the reform platform—which he locates not only in scholarship, including procedural justice literature, but also in the views of most regular people—has aimed at the elimination of racial bias by police officers, prosecutors, and judges, to advance racial equity within the criminal process. Relying on the work by Paul Butler—a distinguished penal abolitionist—he questions this agenda, first, in terms of its breadth, by arguing that a more robust concept of racial equity in criminal procedure should also include racially proportionate penal outputs. In other words, for Gardner, racial equity requires not only that police officers, prosecutors, and judges do not consciously or unconsciously discriminate against African Americans, but also that African Americans are stopped, arrested, jailed, and incarcerated at the same rates as white Americans. Penal outcomes should be considered because disproportionate outcomes are in themselves a discrete harm for African Americans, since incarceration has a deep negative impact on the imprisoned and their social networks and it weakens African Americans as a group in their participation in the work force, their reception of public welfare and education, and their participation in the democratic polity.

As for the penal abolitionist platform, Gardner argues that its unique value lies on its descriptive and moral claims. Mass incarceration is indeed a social problem that has a racial dimension, and criminal law theory should not be blind to social structure. For Gardner, penal abolitionism rightly argues that there is a collective moral failure in the racially disparate outcomes of the criminal legal system, and the public debate about it must indeed go beyond the questions of violent versus nonviolent crime or official discretion in criminal procedure. This situation creates a credibility gap for the criminal justice reform project.

However, Gardner does not adopt abolitionism as a normative position because he argues it does not account for the African American interest of having state protection against private violence, and for the well-documented fact over several decades that a majority of African Americans want more rather than fewer police in their neighborhoods despite their negative views on the police. Instead, he aligns with the work of Tommie Shelby and criminal law minimalists.

To rescue the criminal justice reform project and give a normatively appealing content to African American procedural interest, Gardner argues that this project should embrace a racial proportionality principle under which there should not be a Black-white gap in penal outcomes.

However, Gardner maintains that even this newly defined procedural interest is in tension with two other African American penal interests: the security interest—i.e., the group’s interest in state protection of physical safety from private violence; and the democratic interest—i.e., its interest in exercising collective influence over penal institutions and in bureaucratic representation within these institutions. He says these three interests were generally aligned during Reconstruction, but “the alignment broke down as the criminal law threat of primary concern to African Americans shifted over the course of the 20th century from white racial violence to street violence.” According to Gardner, the breach between the penal reform project and the penal abolition project or between scholars like Randall Kennedy—whose work has emphasized the security interest through his underenforcement thesis—and Paul Butler—whose work has emphasized the need for racially proportionate penal outputs—would originate in that each side ultimately fails to properly account for each of these African American penal interests and the tension among them. Through a historical narrative supported by multiple scholarly accounts and empirical studies, Gardner illustrates the early alignment and later tensions between these three interests from the creation of NAACP up to the current mayoral administrations of Eric Adams in New York City and London Breed in San Francisco.

Gardner argues that to address this tension between these three African American penal interests and advance a more robust conception of the procedural interest that includes the need for proportionate penal outcomes, criminal justice reform must include social welfarist policies in its agenda given that structural racial inequality has been one of the drivers of racially disproportionate penal outputs. This presents a challenge for criminal-legal scholars since welfarist policies are typically not within their realm of expertise. But it is the only way to have a credible strategy to close the racial gap in penal outcomes.

This is a powerful article. Its analytical distinction between the three African American penal interests and its thicker conception of the procedural interests is very helpful to locate social and political agendas and scholarly projects, and to dissect possible strengths, weaknesses, and tensions within and between them. It also proposes a way forward to address these tensions and advance the fulfillment of our long-standing pending social duty of achieving racial equity in the criminal legal system.

Cite as: Maximo Langer, Racial Equity, Reform, and Abolition in the American Criminal Legal System, JOTWELL (July 21, 2023) (reviewing Trevor George Gardner, Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. __ (forthcoming 2023)), https://crim.jotwell.com/racial-equity-reform-and-abolition-in-the-american-criminal-legal-system/.

The Rationality of Criminality

One of my favorite article titles is The Deterrence Hypothesis and Picking Pockets at the Pickpocket’s Hanging, written by David A. Anderson. It has long been my intuition that, unless eyewitnesses or the police are nearby, most people actively contemplating crime are rarely deterred by the prospect of being caught and are virtually never deterred by marginal differences in the sentence they would receive if convicted.  Anderson’s article reinforces that view. As Anderson’s title suggests, in merry old England, pickpockets thought they were so good at their trade they plied it even at the execution of one of their own. Anderson argues that the same dynamic applies today. Based on interviews with prisoners and a review of the literature, Anderson concludes that most violent criminals and the majority of all criminals “are impervious to harsher punishments because no feasible detection rate or punishment scheme would arrest the impelling forces behind their behaviors, which might include drugs, fight-or-flight responses, or irrational thought.” (P. 308.)

But that suggestion has not deterred(!) economists from continuing to focus on the optimal means of preventing crime. In The Economics of Crime: An Introduction to Rational Crime Analysis, Harold Winter, a Professor of Economics at Ohio University, provides a primer of the relevant literature. The opening chapter begins with a question that brings home the importance of economic analysis even if one is predisposed to discount the influence of premeditated cost-benefit calculations on putative criminals. Winter asks, Would you want to live in a society where murders never happen? Winter’s own answer is a strong no: he would “much prefer” (emphasis his) to live in a society in which murders occur. The benefits of a murder-free society would be far outweighed by two costs: the cost—in terms of infringements on freedom and privacy—of an all-out effort to stop homicides and the cost—in terms of diverted resources—to other important societal goals if such an effort were made. Echoing famed economics scholar Gary Becker, Winter suggests that a full cost-benefit calculation may even require factoring in the benefit of crime to the criminal. Overdeterrence can be just as costly as underdeterrence.

For a neophyte to economic analysis like me (and one who is predisposed to distrust it), The Economics of Crime is a useful introduction to the assumptions, methodologies and conclusions of those who look at crime through the cost-benefit lens. Winter makes clear that, as with any empirical science, for each and every study about the economics of crime there is often an equal and opposite study.

Take the debate about whether the certainty of punishment has a greater deterrent impact than the severity of punishment. Most studies find that fear of apprehension is a greater disincentive to crime commission than either the prospect of conviction or the enhancement of sentences. Even so, Becker famously argued that if apprehending criminals can only be achieved through expenditure of significant resources on the police and if punishment can be achieved via a resource-producing system of fines calibrated according to ability to pay, more emphasis might be placed on enhancing the punishment side of the equation, specifically through a well-calibrated fine structure. In response, Winter points out, both those with no ability to pay and those with an infinite ability to do so would probably not be significantly deterred by such a regime; he also notes that a fine-based system can be a temptation to corruption (as illustrated by government abuse of forfeiture laws).

More generally, while numerous studies find that changes in sentence duration have a deterrent impact, other studies, like Anderson’s, find to the contrary.  Some studies find that the incapacitative effect of prison yields a net social gain, despite the expense of the prison system, but other studies indicate that incarceration increases post-release recidivism. And so on. I found this summary of the research on the usefulness of police, prisons, and manipulation of sentence lengths particularly intriguing in light of today’s rejuvenated police and prison abolition movement.

Using simple language and examples and avoiding the confusing and often redundant equations one often finds in economic literature, Winter walks the reader through a number of other well-known controversies in criminal law.  He has sections or chapters canvassing research on the effectiveness of shaming penalties, the imprisonment of white collar criminals, the privatization of prisons, alternatives to prison, three-strikes laws, the death penalty, the legalization of drugs and the criminalization of addiction, and private efforts to prevent crime (such as purchases of Lojacks, personal guns, and bars on windows). Permeating the book are studies on the extent to which various policies are racially biased or produce racially disparate effects. There is also a chapter making a bow to the expansion of economic analysis beyond the rational-actor model to “behavioral economics” theories that take into account individual differences such as risk aversion/preference, implicit bias, gratification impatience and the like. For someone looking for an entrée into economic reasoning as it relates to crime, this slim volume (133 pages) is well worth a look.

Cite as: Christopher Slobogin, The Rationality of Criminality, JOTWELL (July 3, 2023) (reviewing Harold Winter, The Economics of Crime: An Introduction to Rational Crime Analysis (2020)), https://crim.jotwell.com/the-rationality-of-criminality/.

Regulating Private Influences on Policing

Farhang Heydari, The Private Role in Public Safety, 90 Geo. Wash. L. Rev. 696 (2022).

One of the pleasures of chairing faculty hiring is seeing fresh scholarly stars launching their law professor career.  During the intense whirl of hiring season, new entrants to law teaching author much of my law review article reading load.  One of the stellar scholars with an exciting trajectory is Farhang Heydari.  In his recent article, The Private Role in Public Safety, Heydari writes about private influences in policing with the authority of experience working with police officials and litigating civil rights and liberties cases.  Heydari is Executive Director at the Policing Project, founded by preeminent policing scholar Barry Friedman to strengthen democratic governance of policing.

As an example of how private enticements impact policing, consider the Baltimore Police Department’s total aerial surveillance program.  A private company, Persistent Surveillance Systems, contracted with the Baltimore Police Department to use three planes mounted with high-resolution cameras to record activities throughout 90 percent of the city.  A Texas billionaire promised to pay for the $3.7 million pilot program.  The grassroots group Leaders of a Beautiful Struggle, represented by the ACLU, challenged the overflight program, alleging violations of the rights to free association under the First Amendment, and privacy against dragnet warrantless government surveillance under the Fourth Amendment.

New scholarship at the intersection of policing, technology, and democratic governance theory is essential given the social import of the intimate relationships between private actors and police departments.  Scholars with experience in the field are particularly well-situated to garner credibility, and to design workable proposals for regulation.  Heydari’s experience is stellar.  Because of his policing technology policy work, Government Technology named Heydari one of the Top 25 Doers, Dreamers, and Drivers in 2021.

Experience gives Heydari a wise, balanced voice sorely needed in a fractious arena oft-filled with Manichean polemics. Privatization is what gave rise to the private prison-industrial complex and accountability challenges, Heydari observes.  How do we make sense of these contrasting calls to privatize and yet also curtail privatization of the criminal system?  Even more importantly, how can people seeking to address the ailments of the current system productively harness and govern the influence of private actors?

Heydari explains that private influences pervade the criminal system, from private individuals reporting and thereby steering police action, to the use of vast volumes of privately held data, such as cell phone location information.  His conceptualization of private influence is at once broader and more pragmatic than what is traditionally conceived as privatization, which refers to the outsourcing of public-sector duties to private actors.  Even more interestingly, Heydari calls attention to the influence of private philanthropy or grants of private-sector resources upon police departments.  Such private inflows of resources tempt police departments to deploy policing surveillance strategies or technology with limited public oversight.

My motivating example of the Baltimore Aerial Surveillance Systems program shows how private funding strategies can evade democratic governance and oversight.  As reported by the Baltimore Sun, the Baltimore Police Department kept the funding for the aerial surveillance program secret using a private foundation that manages charitable funds for police.  Not even the private foundation’s director knew the purpose of the money passed through his foundation for the aerial surveillance program.

In his salutary, balanced style, Heydari writes that private influences on policing are pervasive and unavoidable, and have positive as well as negative potential.  For example, private community-based violence prevention organizations can provide fresh harm reduction approaches.  Moreover, public providers of privatized services can pose challenges to regulation that are similar to those caused by private actors.  The issue is one of effective democratic governance rather than whether an actor is public-sector or private, Heydari argues.

The key is how to regulate the impact of private influences to maximize benefits and reduce harms. Heydari advocates for a “parity-focused” regulatory strategy that reduces harms, whether generated by public or private actors.  Heydari’s parity lens enables envisioning an array of legislative reforms.  For example, he suggests that regulators require the entity that approves law enforcement budgets also approve all private donations above a certain threshold.  He suggests applying open records laws to private contractors hired with funds held by, or donated to, the police.

While highlighting the promise of community-based violence prevention organizations, Heydari also cautions against allowing such organizations to operate without adequate governance.  The claim of representing the community can efface real and important differences in opinion among affected community members, Heydari observes.  Governance and transparency are important to ensure democratic accountability of these community-based organizations.

Heydari argues that the Supreme Court’s decision in Carpenter v. United States moves toward a parity-focused vision by requiring a warrant for location tracking via privately held cell-site location data obtained by the government.  This reading of Carpenter as advancing private-public parity is intriguing yet puzzling because Carpenter adheres to the requirement of government action.  The warrant requirement comes because police want to use the cell site location data, not because a private actor gathered it.  Google is not subject to the Fourth Amendment when it tracks our movements pervasively for its private purposes, the way that government actors are.  Carpenter revises Fourth Amendment third-party exposure doctrine, which usually refuses to recognize reasonable expectations of privacy in information exposed to third parties.  Carpenter still requires government action, however.  Private gathering and use of information from ubiquitous tracking is still unregulated by the Fourth Amendment unless and until the government seeks to obtain and use the information.

Heydari wisely acknowledges that perfect equivalence between public and private actors in policing is impracticable and undesirable.  So how would he mediate these differences in constitutional criminal procedure doctrine, which currently focuses on government action, as well as legislation?  In future work, it would be intriguing to see him wrestle with whether and how he would apply his parity approach to reshape constitutional criminal procedure doctrine as well as legislative action.  One of the exciting aspects of reading the work of a person poised to enter law teaching is knowing that such tantalizing ideas and open questions will be addressed in a growing body of important work to come.

Cite as: Mary Fan, Regulating Private Influences on Policing, JOTWELL (May 31, 2023) (reviewing Farhang Heydari, The Private Role in Public Safety, 90 Geo. Wash. L. Rev. 696 (2022)), https://crim.jotwell.com/regulating-private-influences-on-policing/.

Punishment as Rights Violation

Kate Weisburd, Rights Violation as Punishment, 111 Cal. L. Rev. ___ (forthcoming 2023).

In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.

So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations.

Indeed, in what is one of the most important contributions of the article, Professor Weisburd and a group of students have conducted a national survey of rules governing all manner of alternatives to incarceration such as probation, drug courts, or house arrest. What they find is a world of almost limitless intrusion by the state into some of the most consequential and private decisions of a citizen. These intrusions include mandatory drug treatment programs that compel participation in religious activities. They also include restrictions on individual choices concerning with whom to associate, with whom to become intimate, and how to parent. Because the reality of prison is so bad in America (and has been associated with a cancellation of constitutional rights) courts often simply assume that the state can cancel whatever rights it wants for those it leaves outside of a cage. But in their own way, these limitations on basic elements of equal citizenship may be even more disempowering and stigmatizing for those who appear otherwise “free”.

If we did not segregate constitutional law and criminal procedure in our academic curriculums (an important critique raised by Weisburd) more students would surely assume that when the state seeks to interfere with a fundamental right like marriage or family, it would have to meet the usual terms for evaluating such interferences, i.e., “strict scrutiny”. The restrictions would have to be narrowly tailored to achieve compelling state interests. Of course, given the vicissitudes of imprisonment, as well some of the circumstances surrounding alternatives to incarceration, the government might often be able to establish that; but the point is they would have to do so. However, the only time the Supreme Court has squarely addressed the question they held that simple rational basis was enough. Against this thin doctrinal background Professor Weisburd provides a comprehensive examination of the existing jurisprudence as well as promising innovations like the federal law protecting religious liberty in prisons enacted in the early 2000s and establishing strict scrutiny.

Roughly two coherent schools of constitutional thought can be traced here. One is that conviction for a crime, or at least a felony, more or less extinguishes the convicted person’s rights. They become civilly dead, a virtual slave of the state. This perspective has its roots in the tradition of capital punishment for felony and echoes in the 13th Amendment’s infamous tolerance for involuntary servitude for a crime. Its leading modern expounders are Justice Thomas and the late Justice Scalia. In this view, which may now represent a majority view on the very conservative Court, only measures that meet the 8th Amendment definition of “cruel and unusual” are forbidden to the state in punishing crime (and that restriction is very limited indeed).

The other approach, embodied mostly in dissents by liberal Justices such as the late Justices Stevens and Brennan, would hold that all constitutional rights are retained unless specifically incompatible with the imposition of the core punishment (like the right to liberty and incarceration). This view, which holds out human dignity as the animating principle behind the entire document, has reached its highest legal expression thus far in the European Community’s Human Rights jurisprudence. Justice Kennedy, whose decisions on both the 8th Amendment and Due Process often seemed informed by human dignity is gone today and his replacements seem more likely to follow the Scalia-Thomas approach.

While Professor Weisburd’s legal argument for broad enforcement of constitutional and other rights, in both sanctions that are alternatives to incarceration and incarceration itself, is unlikely to be be welcomed in the Supreme Court in the near term, it is a tool kit that advocates for individuals and communities burdened by this vast and autocratic system should eagerly explore. Some of the arguments will find takers in courts at both state and federal levels given the overall paucity of decisions. Others can be taken to legislatures and, where possible, voter initiatives. Perhaps most importantly, by making visible the shocking contrast between the constitutional democracy we purport to live in, and a carceral world sheltered only by one clause in the Constitution, Professor Weisburd’s analysis reminds how deeply punitive and thinly legal our institutions of punishment are, from courts, to electronic bracelets, to prisons.

Cite as: Jonathan Simon, Punishment as Rights Violation, JOTWELL (May 2, 2023) (reviewing Kate Weisburd, Rights Violation as Punishment, 111 Cal. L. Rev. ___ (forthcoming 2023)), https://crim.jotwell.com/punishment-as-rights-violation/.