We live in the midst of a great wave of reforms of the penal state. Much of it seeks a sharp break with recent decades of penal policy aimed at supersizing imprisonment in the name of incapacitation and control. Some observers, including this one, have been optimistic about this wave of reform for a variety of reasons. For the first time in decades reform is being normatively backed up both by social movements and federal court orders (although after Justice Kennedy’s departure the future of the federal courts are in doubt). Growing fiscal demands on states, magnified during the Great Recession, have finally forced a reckoning with correctional costs. Correctional officials in many states are talking about education, rehabilitation, and reentry with an enthusiasm not seen since the 1970s. When Policy Comes to Town by Andres Rengifo, Don Stemen and Ethan Amidon is a sobering reminder of the power frontline correctional workforces and their supervisors have to resist reform and how many discursive resources they have to define away that resistance.
The research grew out of an important change in Kansas correctional philosophy intended to reduce the state’s reliance on mass incarceration in favor of more effective rehabilitation and reintegration guided by risk assessment. The reform, dubbed the Kansas Offender Risk Reduction and Reentry Plan (KOR3P), was promoted as a change in orientation shaping the whole system. The rhetoric associated with the program was a sharp break from the model of control and containment that had guided Kansas (and many states) during the era of mass incarceration. Nor was the reform only about rhetoric, new staff focused on reentry were hired, and frontline staff, particularly parole agents, were encouraged to be more innovative in connecting released prisoners to their communities. The authors took advantage of real-time access to Kansas correctional staff (frontline, supervisory and management) to explore how correctional workers thought about reform and how they articulated their own relationship to it. They were given unprecedented access to prisons and parole offices throughout the state, where they undertook extensive qualitative interviews and focus groups with Kansas correctional staff and managers, ultimately gathering data from over 500 informants (far larger than the typical qualitative study of corrections). The result is the closest look ever at a correctional system going through what its leaders view as a paradigm shift.
Working in the broad narrative tradition of sociological criminology associated with the likes of Erving Goffman, the researchers develop a productive schema for mapping how the discourse of resistance takes shape over time in a correctional bureaucracy in transition. The researchers were also able to gain some insight into the success of the reform program through examination of documentation and interviews with supervisors and managers. Resistance discourses among Kansas staff took three major forms: denial, dismissal, and defiance. Deniers tended to assert that the reform was nothing new at all and suggested no change would be necessary in how they did their jobs. Others recognized that reform implied change but dismissed reform as certain to fail for a variety of reasons (too narrow, too superficial, won’t last). Finally, those prone to defiance recognized that reform might actually happen but opposed it as wrong (usually because it would undermine public safety or the security of the institutions).
In probing their qualitative data, the authors recognized a variety of different frames within each mode of resistance. Some resistance is pragmatic, framed in terms of how the institution and its agents would actually cope with reform. Other expressions are framed normatively, assailing reform for its misguided values. Finally, much resistance, and particularly at the bottom of organizational structures, is mostly expressive, designed to produce emotional release but ungrounded. Perhaps not surprisingly, the resistance frame that the authors found to be most connected to actual obstruction of reform was pragmatic, while expressive resistance seemed unrelated to action.
The research, like all empirical research, especially in a correctional setting, has important limitations. The authors were not able to directly observe or measure resistance to implementation, but had to rely on interviews with their informants and some observations to draw associations. Race and gender are unmentioned (one assumes as a condition of access). Even so, “When Policy comes to Town” provides us with unusually sophisticated access to the thinking of a group of actors whose power will undoubtedly shape the future of any major reforms of criminal justice in our time, i.e., frontline justice system workers and their supervisors and managers.
There are also some substantive lessons for reform that may well apply to other parts of the carceral state in addition to corrections. While emphasizing change, the Kansas program also embraced risk assessment as a crucial continuity with the old model of control and containment. Risk was now supposed to be used to identify services and interventions that could overcome them to achieve reintegration, rather than just to set levels of confinement. But the language of risk also allowed for denial and dismissal of change. Risk assessment today looks like a winning way to package reform as safe and secure (not just in reentry but bail, policing and many other issues), but in reinforcing the underlying logics of mass incarceration risk tools may be no exit at all. Second, reforms that are big on rhetoric and short on operational changes are most vulnerable to resistance. The Kansas policy shift was filled with very broad pronouncements and which addressed the whole organization but its most significant changes and interventions in actual practice fell narrowly on a much smaller portion of prisoners, parolees and staff. The resulting gap fueled both denial and dismissal. This is another lesson that applies across the carceral state. If you want to achieve buy-in from always cautious frontline workers and supervisors, provide them clear guidelines on what doing a good job looks like under the new regime. Telling people to innovate may work well in start-up culture, but in bureaucracies shaped by strong fears of criticism for failing to prevent crime, measurable metrics of reform success are indispensable.
Jotwell’s Criminal Law Section wishes to thank Professor Donna Coker for being a founding editor of the section and for her many years of excellent editorial work as she steps down as co-editor of the section. We are grateful that Donna will remain a contributing editor. We also announce with excitement that Professor Jennifer Chacon of UCLA Law School has agreed to become the new co-editor effective immediately. Professor Chacon is a leading scholar of criminal law and immigration law who recently joined the UCLA faculty from UC Irvine.
Josephine Ross, What the #Metoo Campaign Teaches About Stop and Frisk
, ___ Idaho L. Rev.
___ (forthcoming 2018), available at SSRN
Josephine Ross’s article, What the #Metoo Campaign Teaches About Stop and Frisk, provides a unique and startling insight into the invasive experience of police body searches, and the psychological damage that can result. One of the law’s central roles is to limit the power of government officials (among others) to interfere with the public by prohibiting state officials from engaging in certain offensive acts. This rule-of-law role is especially important when government officials, like the police, are granted enormous material and normative powers to inflict physical harm and stigmatize civilians through the criminal law. The rule of law is even more important when many of the people most likely to come into contact with the police are already vulnerable thanks to their precarious status in society.
A core limit on the rule-of-law check on police power is accountability. Sometimes, prosecutors simply do not want to punish the police, for a variety of reasons. On other occasions, police misconduct is hard to spot, because so much of policing is low visibility. The police know this. Jerome Skolnick’s celebrated formulation of the problem, in his book, Justice Without Trial, called this a battle between the rule of law and the police’s order-maintenance role. All too often, Skolnick (and most policing scholars) revealed, the police depend upon low-level acts of harassment, rather than the criminal law, to maintain order and fight crime. And while that harassment is often high-visibility in relation to the civilian subjects of their authority, it is low-visibility in relation to the legal officials who could call them to account, as well as the general public, who generally do not know (or do not want to know) what the police are up to on the street.
As Josephine Ross reminds us in her fascinating article, these features of low public visibility, low institutional accountability, but high visibility to the tormented victims of harassment are precisely the features that police harassment shares with the sort of sexual harassment called out by the #metoo movement. The #metoo framework reveals that sexual assault and sexual harassment is something that lots of people know about, but no one talks about, except perhaps in whispers. Supervisors are unwilling to regulate their star performers and tolerate a culture of harassment and intimidation in which the onus is on the victims to avoid compromising situations, often at the cost of important, career-enhancing, social interactions. In a culture that tolerates this sort of behavior, the targets of harassment know that complaining has no effect at best, and at worst, produces severe career consequences.
Professor Ross’s article has, at its core, a powerful insight. Frisks, she argues, impose similar types of intrusion upon the public as sexual harassment, in ways that are both asymmetric and arbitrary. The frisk’s asymmetry consists in the response of the police and the suspect to the sort of invasive touching that is euphemistically referred to as a “pat down.” The police are taught to fear weapons concealed in sexualized spaces: between buttocks and breasts, and in the groin area. They are trained to target these areas, and feel for weapons, in ways that the officer may not regard as sexual, but which the suspect often experiences as sexualized. As Professor Ross reveals, to the subject, “it feels like a sexual violation, but the officer may be simply following his supervisor’s orders, doing what he is trained to do.”
As in the case of sexual harassment, the practice is widespread, well-known by the victims, often invisible to the public at large (who are likely to discount the scope of the practice) and commonly tolerated by police chiefs and prosecutors who are aware of the problem but unwilling to intervene to enforce the legal prohibitions on this form of workplace power. Police touching of sexual parts of the body effectively communicates the vulnerability of the person searched, and submits them to stigmatization and humiliation. In the context of mass frisking, as a consequence of aggressive stop-and-frisk policing, some members of the public are subjected to a particularly degrading form of physical dominance and control.
Professor Ross’s article opens up an aspect of policing hidden in plain sight on the pages of the law reporters. In two cases, at the beginning and at the end of the Warren Court’s expansion of Fourth Amendment regulation, the Court addressed policing in the context of intimate intrusions upon the suspect’s body. Most famously, perhaps, Dollree Mapp attempted to hide a purported warrant in her bosom. In the words of the Mapp v. Ohio Court, “A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been ‘belligerent’ in resisting their official rescue of the ‘warrant’ from her person…a policeman ‘grabbed’ her, ‘twisted (her) hand,’ and she ‘yelled (and) pleaded with him’ because ‘it was hurting.'”
At the end of its Fourth Amendment criminal procedure revolution, the Warren Court, in Terry v. Ohio, returned to the issue of intimate physical touching by law enforcement officers. In describing a frisk, the Court noted that “(T)he officer must feel with sensitive fingers every portion of the prisoner’s body. A through search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.'”
A frisk, the Court recognized, “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” Id. at 17. Put differently, encounters with the police, especially frisks conducted as part of a Terry stop or an arrest, place the suspect in a particularly vulnerable position.
Police encounters with the public come in all shapes and sizes, from brief visual or verbal interactions to deadly shootings. For many members of the public, the encounter, even if just a stare from a police officer in a high-crime neighborhood, may be enough to remind them of their, or others’, past experiences; and give rise to the fear and deference that comes with trying to avoid or placate the powerful. Little wonder that some people flee.
Eric Garner, as Josephine Ross reminds us, did not run. Instead, Eric Garner stood his ground, and said “Every time you see me, you want to mess with me. I’m tired of it. It stops today…Please just leave me alone.” (P. 6-7.) Ross’s revelatory account of the fatal interaction reveals that Garner, like Dollree Mapp, had been the victim of the sort of physically intrusive touching envisaged by the Terry Court.
“Seven years earlier, [Garner] filed a civil rights lawsuit against another police officer for performing a strip-search on him in public during a pedestrian stop. [During the frisk,] the officer performed a ‘cavity search on me by . . . digging his fingers in my rectum in the middle of the street.…the injuries I received was to my manhood…'”
Professor Ross allows us to see the interaction between Eric Garner and Officer Daniel Pantaleo in a completely new light. Garner, the victim of what felt to him like a sexual assault, knew he was in a vulnerable position. He knew what might happen if the police touched him, and simply wished to walk away. But norms of race, gender, and police practice worked against his attempt to reason with the police. His past trauma and physical precariousness was hidden behind his large frame, conveying a form of hypermasculinity that undermined his credibility in conveying his psychological fragility. Particular police policies encouraged the police to interfere, including”third-party policing,” which leverages shopkeepers to report minor crime, and New York’s embrace of broken windows’ intolerance of minor street disorder to ensure enforcement of these ordinances. Garner’s failure to respect the officers’ command presence likely constituted a significant factor in police escalation; his demands were taken as resistance to the street authority of the police.
The rule-of-law limitation on police power is supposed to make the public less vulnerable, by setting out clear rules of engagement and ensuring that the civilian and police officer enjoy an equal standing before the law. But the ability to engage in low-visibility, sexually-intrusive interactions entrenches a different, more arbitrary, set of norms that enforce precariousness. These unwritten rules of the encounter are, like the responses to workplace sexual harassment, repeated by the whisper network among the vulnerable to avoid contacts with harassers. Like the Hollywood practice of powerful men interviewing vulnerable women in hotel bedrooms, Professor Ross shows that the frisk is, on its own terms, ill-fitted for the purpose it is supposed to serve. The cost to the public is not worth the benefit to the police: the amount of information generated by these “forcible encounters” (as Justice Harlan called them in Terry) is small and unlikely to dispel the suspicions of a persistent officer. Professor Ross’s conclusion is that, because the law cannot regulate police power by setting rule-of-law limits on its use, the law should simply prohibit that practice. The power of Professor Ross’s article, as with the #metoo movement itself, is that whether or not we agree with all of its prescriptions, we can no longer avoid recognizing and addressing the practices that produce this form of harassment.
Lan Cao, Made in America: Race, Trade, and Prison Labor
, available at SSRN
Twenty years ago this September, over 3500 activists gathered in my home town of Berkeley, California, for a conference entitled “Critical Resistance: Beyond the Prison Industrial Complex.” Their purpose was to reject outright the project of criminal justice reform and to call instead for the complete abolition of prisons, jails, and other human cages.
Central to the argument for prison abolition is the notion that we law teachers mislead our students when we teach our students that the purpose of prisons and jails is to effect retribution, rehabilitation, incapacitation, and deterrence. Abolitionists argue (as do many contemporary academics) that incarceration is terrible at preventing and punishing criminality. Rather, prison responds to deeper political and economic needs. From a political perspective, the carceral system serves the purpose of social control: it expresses racism and helps produce “race;” it helps manage “surplus” populations made economically marginal by globalization and automation of production; and it establishes a new template for governance in the wake of the perceived failures of the 1960s welfare state.
Abolitionists often argue that prison serves an economic function as well. For example, Critical Resistance member Angela Davis says of the 1980s mass incarceration boom,
[A]s the U.S. prison system expanded, so did corporate involvement in construction, provision of goods and services, and use of prison labor. Because of the extent to which prison building and operation began to attract vast amounts of capital – from the construction industry to food and health care provision – in a way that recalled the emergence of the military industrial complex, we began to refer to a “prison industrial complex.”
Many contemporary scholars have offered evidence and argument to support abolitionists’ political theory of the carceral state—Michelle Alexander, Loïc Wacquant, Jonathan Simon, Marie Gottschalk, and others come to mind. But the assertion that a vast “prison industrial complex” (hereafter PIC) profits from incarceration is much less well supported by the evidence. Prisons and jails look much more like zones of “dead capital,” in Ruth Wilson Gilmore’s phrase: prisoners languish rather than work, new facilities fail to produce promised community jobs, and private prisons remain a relatively small part of the carceral system (although attorney general Jeff Sessions has recently given them a thumbs-up to expand). In Made in America: Race, Trade, and Prison Labor, however, Lan Cao provides some intriguing support for the economic part of the abolitionist case.
Cao, an international trade scholar, argues that our era of trade wars and “Make America Great Again” opens the door for the greater use of prison labor as a means of “insourcing:” “Using prisoners as their workforce, companies can keep production costs low, access a range of tax benefits, and promote their products as ‘Made in the USA.’ Since the loss of American jobs is typically blamed on low-wage workers in poor countries, many companies have responded to the calls to stop outsourcing American jobs through contracting with U.S. prisons to hire prisoners.” Prison laborers lack the legal rights of employees. Like the labor of undocumented people, then, inmate labor is cheaper because it is less free—making “insourcing” increasingly attractive.
Cao argues that as undocumented workers already do, prisoners are well-placed to serve as a nearly invisible base of a global production system. The federal government-owned corporation that hires prisoners out under the innocuous-sounding trade name UNICOR waves the “Made in the USA” flag when touting its services, as do state prison industries that do the same. State and federal governments offer legal and financial incentives to companies that are willing to replace foreign labor forces with a domestic one. The resulting products travel the world. Cao notes that although importing goods made with prison labor violates the Smoot-Hawley Tariff Act of 1930, exporting them is perfectly legal. Thus, the California Prison Industry Authority “has actively searched for export markets in Europe and Asia for denim jeans made in its prisons,” and jeans made with Oregon prisoners’ labels were blithely marked in Japan and Italy as “Prison Blues, made on the inside to be worn on the outside.”
Finally, like undocumented workers, prison inmates are disproportionately nonwhite. Racism adds social disregard to political powerlessness, continuing a tradition from slavery to the present. Cao concludes, “Prisoners are members of a shadow workforce which overlaps with the free-world U.S. economy. Prison labor has a significant economic dimension through direct and indirect impacts on the economy. In addition to generating vast revenues for corporations, prison labor incentivizes the growth of the mass incarceration system, bloats the prison and criminal justice workforce, and exploits economically vulnerable populations in myriad ways.”
In addition to supporting the abolitionist claim that the carceral system is economically profitable, Cao’s article offers a way to restrict those profits through law. Prison labor, as Cao points out, falls into an anomalous crack in our governance structure: those who benefit from it take the position that inmates are enjoying “rehabilitation,” not performing as workers. This allows the public-private assemblages that exploit their labor to avoid environmental and occupational safety and health obligations. Cao argues, however, that the Fair Labor Standards Act applies to prison labor. If inmates can win the right to a minimum wage, thus substantially raising the cost of their labor, this will both benefit working inmates immediately and open the door to a broader public debate about the functions of the carceral system.
What are the implications of this article for those of us who teach and write in criminal law and procedure? Cao’s article underscores the need for a law and political economy approach to criminal justice scholarship, and the benefits of incorporating international trade law into this approach. As the “crimmigration” literature has demonstrated, the carceral system cannot be fully understood within the traditional confines of criminal law and criminal procedure. We as teachers and scholars contribute to the invisibility of these systems of marginalization and exploitation when we look only at the rights of offenders and inmates vis-a-vis the domestic criminal justice state. Attention to international trade regulation—and the shift from state to market governance popularly called “neoliberalism”—may help us understand the full significance of the flow of bodies through American jails, prisons, and detention centers.
Finally, although more empirical work is necessary to determine the size, scope, and trajectory of production reliant on American prison labor, Cao’s article reminds us of the value of bringing abolitionist arguments into the classroom. We who teach criminal law and criminal procedure typically assume the necessity of the criminal justice system, perhaps stopping briefly to discuss the conventional justifications for punishment and then getting down to the business of how offenders are brought into the system and what their rights within it are. But, what if we stopped to ask whether the system should exist at all? Lan Cao’s article encourages us to ask, with our students, what are prisons really for?
- Jennifer Lee Koh, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, __ Wash. U. L. Rev. __ (forthcoming), available at SSRN.
- Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017).
Regardless of your views over the nationwide protests over family separations and refugee incarceration, these times are an urgent call to understand what is happening in our nation’s immigration system. Just as Padilla v. Kentucky’s holding on the duty to advise regarding the immigration consequences of a guilty plea underscored the need for criminal defense attorneys to understand immigration law, these times are a call to us as educators. Our students, family, friends, and the media turn to us to understand the policies and process behind the human dramas.
Contemporary aggressively streamlined immigration process is a mystery to most of us. As criminal justice scholars, many of whom have practiced in the field, we expect a certain semblance of process, even if we critique that process as less than we would hope. We expect a certain baseline of rights. Jennifer Lee Koh’s body of recent work is powerful and timely because it guides us through the realities of present immigration process, which defies expectations.
Koh’s articles are a fascinating and macabre education on removal proceedings in the “shadows of immigration court,” as she terms it. She powerfully illuminates how the vast majority of people removed from the United States never make it into an immigration court. Her work dispels the conventional assumption that removals proceed by formal order following adjudication by an immigration judge. She gives us a primer on the five main ways people are removed with extreme expedition today.
The first and biggest basis is expedited removal at the border. This occurs when Customs and Border Protection officers who apprehend persons within 100 miles of the border or ports of entry issue removal orders subject to minimal process or review. This power vested in border control agents arose as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which provides that inspecting officers “shall order the alien removed from the United States without further hearing or review” when they apprehend noncitizens without valid entry documents or presenting false entry documents. These removal orders have a similar legal effect as an order issued by an immigration judge. In fiscal year 2015, more than half of the 235,413 total removals appear to have occurred via expedited removals.
The second basis is reinstatement of a removal order for persons who re-enter the United States following removal. The law largely forecloses review of reinstatement, except for extremely narrower avenues. One such narrow defense against automatic renewal is claiming “a reasonable fear of persecution or torture” in one’s home country.
A third basis is administrative removal of persons who are not lawful permanent residents who commit aggravated felonies. This process enables immigration officers to use abbreviated administrative procedures in lieu of immigration court proceedings.
The fourth basis is stipulated removal orders wherein a noncitizen accepts a removal order and agrees to waive the right to an immigration court hearing. At the height of their popularity in the 2000s, stipulated removals tended to occur against persons in immigration detention without attorneys to advise them, and without adequate checks that the persons waiving their rights had any understanding of what was happening.
The fifth basis is an in absentia removal order, which may be entered for persons who miss a court date.
Koh writes about the pathological consequences of the gross mismatch in resources between heavy funding of immigration enforcement, and under-enforcement of the immigration court system. A result is the intense pressure to divert the majority of people processed for removals into the shadow system. Because of the normalization of expedited removals and other shortcuts, improving formal adjudication processes would miss the majority of people who never get that process.
In her most recent and very timely article, Koh focuses in on the interaction between expedited removals and the power to reinstate removal orders. She argues that this creates “legal black holes” whereby a person forever is subject to immediate deportation based on a brief encounter near a border. She shows how agency policies fueled the evolution toward the current norm of expedited removal at the border. She collects findings indicating how some border agents refuse to recognize asylum claims or follow other protocols during expedited removal proceedings. Finally, she argues that routine reinstatements with limited review constitutes arbitrary and capricious action in violation of administrative law principles that the Court in Judulang v. Holder indicated applied to immigration agency policies.
Koh is well-situated to know the evolving trends in shadow proceedings because she continues to represent immigration clients as a clinician. Her overview of the abbreviated approaches that sidestep an already notoriously underprotective process is important reading to understand the fast muddy slide into our present mire.
Cite as: Mary Fan, Extreme Expedition, JOTWELL (August 14, 2018) (reviewing Jennifer Lee Koh, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, __ Wash. U. L. Rev. __ (forthcoming); Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017)), https://crim.jotwell.com/extreme-expedition/.
Anna Roberts, Arrests as Guilt
, __ Ala L. Rev.
__ (forthcoming 2018), available at SSRN
We live in a world in which the most detailed information is used to identify and make judgments about us. Facebook wants to know whether you like grass, or a certain kind of wrestling. Google may sell advertisements based on searches for “chest pain.” But in the criminal justice world, we can be sloppy, and dangerously so. As Anna Roberts explains in her forthcoming article, Arrests as Guilt, there is a marked tendency to interpret the eleven million arrests made every year as findings of guilt. That is, we see that someone is arrested, and we conclude that the person is guilty of a crime. That assumption, made too often by journalists, academics, and the public, creates a host of problems.
Most of us can readily recall examples when media outlets appear to equate arrests with guilt. “Perp walks”—deliberately stigmatizing public displays of an arrested person—are common for notorious criminal cases. (Journalists paid considerable attention to the books carried by disgraced movie producer Harvey Weinstein when he recently surrendered at New York Police headquarters, for instance.) But more serious treatments of arrests suffer from the same problem too.
Studies on recidivism, for instance, must rely on some sort of proxy to assess reoffending. The use of arrest (and re-arrest) can be especially problematic. Arrests are not, of course, determinations of factual guilt. Nor are they findings of legal guilt. And arrest numbers alone do not tell the entire picture of criminality. Not only will a substantial portion of arrestees see their charges dismissed, but arrest data also fails to account for those involved in criminal activity who have been missed, ignored, or de-prioritized by the police. Add to this too the independent incentives of line officers who are influenced by factors that may have little to do with crime, such as the availability of overtime pay.
The costs, as Roberts points out, of conflating arrest with guilt are even more concrete for arrestees. Both the private and public sectors pile on punishments well before conviction. An arrest becomes part of a permanent record accessible to many. The mug shot accompanying that arrest might be posted on private websites demanding fees for picture removals. Those demands are compelling because arrests alone can typically lead to refusals of employment, workplace disciplinary measures, and terminations.
Why do we tolerate a system in which arrests alone can lead to loss of your savings through civil forfeiture proceedings, prevent you from receiving public benefits, cause you to lose custody of your children, and expose you to deportation? The fusion of arrest and guilt exists, Roberts argues, because it aligns with widely held assumptions that meet little resistance. No one speaks up for what many people view as a technical presumption of innocence.
In Arrests as Guilt, Roberts concludes with a perceptive insight. The use of arrest as a proxy for guilt may explain the puzzle of why urgently needed reforms throughout the criminal justice system have been slow to succeed. If guilt—factual or legal—is demonstrated by arrest alone, there is little incentive to fund public defense, reform prosecutorial overreach, and curb police discretion. If “they’re all guilty,” robust debate to strengthen the rights of the accused wanes. And in her thoughtful and original Arrests as Guilt, Anna Roberts explains the enormous social costs of this assumption.
Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, particularly with respect to non-prison sanctions; whether veterans of the field or newcomers to it, readers should find this collection of the area’s leading scholars extremely useful. As the primary Reporter for the recently complete revisions to the Model Penal Code’s sentencing provisions and director of the Robina Institute of Criminal Law and Criminal Justice at Minnesota Law School, editor Kevin Reitz is ideally situated to bring this impressive compendium of material together.
In the opening chapter, Reitz lays out the reason for the book, describing the well-known American mass punishment phenomenon in ways that present the problem in a new light. For instance, he notes that the U.S. would have to release 1.8 million inmates simply to achieve the same imprisonment rate as England and Wales, western Europe’s leader in per capita imprisonment. Whether the focus is long-term confinement, the use of probation and parole, or the imposition of collateral consequences, Reitz notes, we “beat” all western European countries hands-down.
Perhaps the most eye-opening part of the book are the three chapters discussing the latter aspects of the American-European comparison. Edward Rhine and Faye Taxman document that the U.S. probation population is seven times that of Europe, making clear that Europe does not substitute probation for prison but is much more parsimonious than the U.S. with respect to both types of intervention. The authors also point out that, compared to Europe, the U.S. approach to probation tends to be more surveillance- and risk management-oriented, as well as longer, more restrictive, and more prolix in its conditions. Dirk van Zyl Smit and Alexandro Corda find the same to be true of parole, and further note that while in Europe parole is used as a mechanism for early release, in many American states it is now simply a means of supervising offenders after they have served their judicially-mandated prison time. Finally, Nora Demleitner describes the significant contrast between our willingness to recognize literally hundreds of collateral consequences to a conviction (ranging from loss of the right to vote to disqualification for welfare), and the many European regimes that view such consequences as unjustified punishment and degrading to the dignity of the offender.
Two other chapters in the book also focus primarily on the question of how, rather than why, the U.S. is different. David Garland examines the most glaring difference: the U.S. has the death penalty, while Europe and most of the rest of the West does not. But he also reminds us that an increasing number of American states do not permit death sentences, and that Europe itself countenanced capital punishment in the not too-distant past. He concludes that the U.S. is an “anomaly” but not an “exception” to the general western trend toward abolition of the ultimate sanction. Similarly, Frank Zimring’s chapter notes that, even with respect to punishment more generally, some states’ incarceration practices are closer to those in Europe than to the average American state. But neither author denies the relative punitiveness of U.S. criminal justice overall.
The other chapters in the book focus on why that is the case. Some identify aspects of the criminal justice system itself as the cause of America’s high imprisonment rates. A primary culprit in Reitz’ eyes, for instance, is the risk averse attitudes of U.S. parole boards, institutions that still reign in a number of states. Cheryl Webster and Anthony Doob suggest that another culprit is American “optimism” about penal policies; comparing the U.S. to Canada rather than Europe, they argue that one reason imprisonment rates have stayed relatively stable in Canada is that the polity in that country is much less likely to attribute efficacy to either prison or rehabilitation as a crime prevention strategy.
Other authors look beyond the criminal justice system for causes. In their chapter, Nicola Lacey and David Soskice elaborate on a diagnosis that Lacey has advanced in other work: they argue that America’s massive and racially-disproportionate punishment system is largely the result of the U.S.’s unique aggressively decentralized decision-making infrastructure, which is more likely to create polarizing dynamics than Europe’s nationally-oriented politics. Tapio Lappi-Seppala takes a broad scope as well, attempting to test multiple hypotheses about the American punishment rate through statistical comparisons between a number of countries as well as the separate American states. He examines the effects of crime (homicide rates and general crime rates), demographics (racial makeup, geography, and population homogeneity), politics (social welfare policies, trust in government, and election of judges), and a number of other variables, and finds that while some combinations of these factors explain upwards of 60% of the variance between countries or states, identifying any particular complex of causes for our punitive practices is extremely difficult.
Many of the authors zero in on whether there is something about the nature of crime in the United States that provides insight into its punitiveness. Reitz asserts that while the U.S. does not have more “general crime” than other Western societies, it has more serious crime—which Reitz defines as homicides, near-homicides, and serious woundings—than any of them, and suggests that this difference is one reason for our heightened imprisonment rate. That view is echoed by Zelia Gallo, Lacey and Soskice, who provide solid data indicating that, while homicide rates in the U.S. may not differ that much from homicide rates in some countries, the risk of victimization by some sort of violent crime is much higher in the U.S., so much so that “one might reasonably suggest that violence represents a qualitatively as well as a quantitatively different social phenomenon.” (P. 354.) Lisa Miller also insists that violent crime and its politicization often occur in tandem, and argues—echoing the claim made by Lacey and Soskice—that when such politicization occurs, the localized nature of American democracy creates many “veto points” that block social welfare solutions to crime.
In contrast, Lappi-Seppala’s analysis of the data leads him to conclude that, “in global comparison, the extraordinarily high U.S. incarceration rate cannot be explained by a higher victimization rate or by a higher homicide rate.” (P. 256.) Randolph Roth reaches a similar conclusion after canvassing longer-term American historical trends, among them that neither homicide rates nor imprisonment rates were very high during much of the early history of the republic, and that American authorities were relatively lenient, at least toward white offenders, until as late as the 1970s even after homicide rates rose. Neither of these authors directly contest the notion that the U.S. is saddled with more violent crime overall, however.
Although all of the authors appear to believe the United States is too punitive, none of the chapters offers in-depth prescriptions for change. But the book significantly furthers our understanding of American criminal justice exceptionalism and thus inevitably gestures toward the manifold ways something might be done about it.
Gabriel S. Mendlow, The Elusive Object of Punishment
(Draft, March 11, 2018), available at SSRN
In the adjudication of criminal law, judges tend to agree upon the elements that make up a given crime, but are less certain about exactly which element the law seeks to punish. For example, in child pornography possession statutes, it is difficult to determine the underlying transgression that is targeted by the punishment. Is it the act of possessing the images that is blameworthy or is there something else? And if so, what? Does the law actually seek to punish certain thoughts that the images engender – particularly to steer people away from thinking about children in a certain way? The closer one looks, the more one might suspect that the law is punishing thoughts about certain images. From this perspective, the crime of possession takes the shape of a thought crime more than anything else. However, this very state of mind—which might be the true object of punishment—is not even an element of the offense.
Gabriel S. Mendlow’s The Elusive Object of Punishment highlights such uncertainties in criminal law and how they might produce unfair punishment practices. As the author notes, these uncertainties “underlie an assortment of familiar disputes—over venue and vagueness and mens rea, over whether an offender’s sentence is proportionate to his offense, and over whether the offense itself is a legitimate object of punishment…Yet these disputes may hinge on deeper disagreements about the identity of the wrong a law punishes.” Through careful statutory analysis, Mendlow makes a powerful case that the object of punishment can be obscure and elusive, and that justice may suffer as a result.
Expounding on a distinction of Professor R.A. Duff, the work begins by establishing the importance of distinguishing the wrong an offender is being punished for from the conditions on which he is being punished for that wrong. In order to cast culpability on a defendant legitimately, the law must be certain about whether it is punishing the defendant for a transgression that the law may punish. But sometimes, courts are uncertain about the target of punishment – as demonstrated in hate-crime assault statutes. Wisconsin’s Supreme Court struck one statute because, in its view, the law imposed punishment for what the Court deemed the defendant’s “bigoted thought.” The U.S. Supreme Court saw the Wisconsin statute differently and focused on the assaultive nature of the offense. Furthermore, this Court reasoned that bias was simply a tack-on enhancement, not the point of blame. These, and other examples, demonstrate that failure to distinguish the wrong an offender is being punished for from the conditions on which he is being punished for that wrong leads to downstream problems, including when the criminal law oversteps its jurisdiction, punishes unfairly, and punishes when it should not.
Next, the work sets out to distinguish “conditional offence elements” from those elements considered material for purposes of casting culpability. Whereas the law may punish someone only if that person satisfies a statute’s set of elements, this notion hardly means that all elements are created equally. For example, if a sexual assault statute requires prosecution of a crime within a specified number of years, the time frame is a condition for ultimately imposing punishment. As such, the time component is immaterial when considering culpability. A clear understanding of this distinction sets the stage for examining genuine instances of punishment directed at conditional elements, or potentially more problematic, factors beyond the elements themselves.
Having outlined the moral and punitive import of material elements, the work moves on to employ the notion of “thought crime” to show how a statute can criminalize behavior outside the criminal law’s jurisdiction, in this case, by purporting to punish an act when it in fact punishes the accompanying mental state. Among other examples given is a British statute that makes it a crime to possess money with the intent to commit a terrorist act. This crime offers a vivid snapshot of how the law might target particular thinking. The object of punishment is arguably not so much the physical “possession” of money, but rather, possessing particular intentions about how to use the money. Thoughts are potentially the real transgression that the law is targeting, even though traditionally, mere thoughts could never be a basis for liability. For the reader, this example and others make clear that possessing such thoughts may not even be an essential element of the offense; however, one should not overlook the fact that thought is potentially the essential object of punishment.
Taken wholly, this work highlights a largely unexamined problem in criminal adjudication, one that invites the criminal law to overstep its boundaries and sometimes punish without justification. The work lends itself to imagining how punishment can be doled out more fairly, and most importantly, that only blameworthy behavior gets punished. In addition, this piece offers a critical reminder that policing human thought is an anathema to concepts of liberty, culpability, and ultimately, justice.
As shown throughout the work, individuals can face punishment seemingly for thinking certain thoughts, in full contravention to American political values. Yet in the world of courts, thought-deterrence can be a major impetus for punishment. While such rigid thought-patrol persists in some areas, in others, there is full license to possess. Practically anyone can possess the most debauched library of humans brutalizing other humans in unspeakable ways—from Faces of Death videos, prisoner mutilations, torture videos, police killings, to other ghoulish graphics—yet there is hardly legal prohibition. The work offers a compelling case for understanding how this situation is possible. The clear and careful analysis points out stark contradictions that offer a unique and critical contribution to legal scholarship. The practical implications for penal reform are especially noteworthy since they work to minimize needless human suffering.
The topic of police reform has received a great deal of attention in academic and policy circles in recent years. One of the most influential frames for the police reform conversation has been procedural justice. Procedural justice, closely associated with the work of Tom Tyler, has replaced a number of other theories of police reform that have fallen, at least temporarily, into the dustbin of history. The procedural justice reform frame focuses on increasing police legitimacy and restoring community trust in the police to improve legal compliance. To achieve that goal, police officers are encouraged to respect human dignity and equality by treating all people with respect, by listening as people express their concerns and feelings in the course of their interactions with police, and by policing in a neutral, nondiscriminatory way. This procedural justice approach stood at the center of the May 2015 Final Report of the White House Task Force on 21st Century Policing and police departments across the country have adopted procedural justice approaches and practices over the past few years.
Enter Monica Bell. Drawing on narrative data that she, along with a research team, collected in Baltimore, Maryland, in the wake of the police killing of Freddie Gray, Bell explains what is missing from the procedural justice frame. She argues that procedural justice centers concerns about compliance with the law, and consequently, focuses on increasing legitimacy in individual interactions to improve compliance. Or, as she puts it “in the version of legitimacy theory that policymakers have adopted most completely, trust between police and communities is understood as a problem of illegitimacy: the key concern is the degree to which people will choose to obey the law and its enforcers.” (P. 2072.) The intellectual origin of this model is Weberian analysis of the subjective process of legitimation, achieved through procedure and consent. The core analytical question at issue in this model is how to legitimate law enforcement in the eyes of the individual, thereby achieving greater compliance with the law. Procedural justice is the answer to this question.
While she does not discard the importance of improving procedural justice in individual interactions, Bell argues that this is flatly insufficient. Importantly, she notes that many members of communities who distrust police are actually complying with the law and have respect for the law and for many (perhaps even most) individual police officers. Yet they still feel alienated from the police and unprotected by them. Bell offers detailed accounts of a number of in-depth interviews from her study to illustrate the point. Her interview participants are young African American residents of Baltimore. Some have a criminal record, many do not. Some have had direct negative encounters with law enforcement, but many have had only positive or no personal interactions. Yet all of them have witnessed or heard about negative police-civilian interactions in their communities, all of them are distrustful of the police and none of them feel that they are or will be protected by the police. Bell’s in-depth presentation of the words of her respondents helps to bring new voices into the police reform discussion. And their words reveal that widespread community distrust is not always a problem of legitimacy as often understood because noncompliance is not really what is at issue here. Individuals are striving to comply with the law and cede authority to law enforcement. But they do not trust law enforcement, nor do they feel that they are the beneficiaries of law enforcement.
Instead of focusing on the causes of and solutions for police illegitimacy in hopes of generating compliance, Bell therefore proposes focusing on the causes of and solutions for community “legal estrangement.” The theoretical origin of “legal estrangement” is not Weber’s focus on process—and consent-based legitimacy, but Emile Durkheim’s notion that, as Bell puts it, “the purpose of the criminal justice system is to restore those who break the law, with the ultimate goal of increasing social cohesion by reinforcing moral and legal norms.” (P. 2083.) Rather than focusing on the individual, this analysis focuses on communities or collectivities, with attention to cultural perceptions and views. The core analytical question is how to solve the problems of anomie or collective alienation and to generate social inclusion. Procedural and structural inclusion is Bell’s answer to that question.
Bell’s point is not that procedural injustice does not matter. Obviously it does, and procedural injustice is one root cause of legal estrangement. But Bell posits that vicarious marginization and structural exclusion operate with procedural injustice to produce legal estrangement. (P. 2100.) And she suggests that poor, marginalized communities of color, particularly African American communities, are unlikely to change their views of law enforcement, nor will they have material reason to do so, in the absence of efforts to address all of these things.
In her discussion of vicarious marginalization, Bell notes the ways that cumulative, collective experiences of substantive injustice and procedural injustice exert a social power independent of the noncompliance that might be generated by an individual, procedurally unjust encounter. Fixing the procedures of individual encounters will not be enough to reshape collective wisdoms. Reform efforts have to take seriously and seek to address the collective memories of police injustice because those memories are an important element in the identity construction of communities. (P. 2106.)
Bell also unpacks structural exclusion, naming the ways that “policies that are facially race- and class-neutral distribute policing resources so that African Americans and residents of disadvantaged neighborhoods tend to receive lower-quality policing than whites and residents of other neighborhoods.” (P. 2114.) As Bell notes, it is important to understand not just who is losing out under the current system, but also who is benefiting. Why do more affluent communities get the most experienced police officers? Why are police response times so much worse in poor neighborhoods? Bell’s analysis invites the reader to think creatively about how entrenched residential segregation, housing (and eviction) policies, local zoning, the size and political control of police forces and other legal choices work together to create a system where some communities are structurally excluded from access to good policing.
Unsurprisingly, Bell does not have a silver bullet solution for the complex bundle of issues that she lays bare. Indeed, Bell counsels against silver bullet solutions. At the same time, she rightly cautions that this does not mean that we should default to hand-wringing. She outlines a series of tools that could be used to tackle legal estrangement. She urges wise use of the federal government’s power under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, the reexamination of compensation schemes for police officers, and the reorganization of smaller police departments (Bell favors consolation). She also calls for “raising the stakes” of Fourth Amendment jurisprudence, by which she seems to mean that judges should take greater account of the true social context in which their decisions most commonly operate and should calibrate rights and remedies appropriately. She notes that state courts have led and can continue to lead the way here. She recommends “democratizing the police,” calling for “more deliberative participation in policing than most proposals demand.” Just calling for more democratic governance of the police will not do the trick if poor and marginalized communities are not participating in the democratic process, so these communities must be engaged. Democratic accountability also requires transparently accessible data about policing, since democratic decisions shouldn’t be made in the dark. Bell also suggests that truth and reconciliation efforts can be part of this democratic process. Finally, she urges “shrinking the footprint of armed bureaucrats,” that is, getting the police out of social service provision and other general governance functions that are outside of the ambit of policing.
Bell is quite forthright in acknowledging the difficulties as well as the weaknesses and insufficiencies of these remedies, both individually and collectively. Indeed, the first three suggestions and the last one do not necessarily move us very far beyond the place where the procedural justice reform efforts have already pointed. Well we know, too, that reform-oriented changes in Fourth Amendment jurisprudence can generate unanticipated negative consequences. And the goal of democratizing the police will require more fleshing out, more concrete suggestions for implementation and a whole lot of community mobilization. But Bell offers all of her suggestions as a helpful starting point for a broader and deeper conversation about police reform. It seems like a discussion worth having.
Guyora Binder, Brenner Fissell, and Robert Weisberg combine to address a significant flaw in the application of Supreme Court’s Eighth Amendment jurisprudence—the application of the Eighth Amendment to unintentional felony murder—in their recent Notre Dame Law Review article. Specifically, the authors argue that lower courts have misread the applicable Supreme Court precedents, Edmund v. Florida and Tison v. Arizona, to reach the unfortunate conclusion that an offender committing an unintentional felony murder is eligible for capital punishment.
Both cases address the application of the Eighth Amendment to felony murder. Enmund held that Florida’s imposition of the death penalty for felony murder violated the Eighth Amendment because the state failed to prove that Enmund killed or attempted to kill. Tison, by contrast, narrowed the holding of Enmund by finding that felony murder could serve as the basis for a death sentence in certain cases and not violate the Eighth Amendment. Particularly, the Tison court held that individuals who are major participants in a crime and demonstrate reckless indifference could receive the death penalty even though they did not kill or attempt to kill the victim.
The core distinction that the authors draw rests on what they deem the unnecessarily mechanical reading that lower courts give to these cases. The authors argue that the lower courts that have applied these precedents have erred by ignoring the culpability requirement imbedded in the decisions, and by allowing death sentences for felony murders where the defendant exhibited no culpability for the death. In this vein, the authors emphasize the failure of courts to account for the long-held animating principle of the Eighth Amendment—that sentences are proportionate in satisfying the purposes of retribution and/or deterrence.
Rather than read the precedents as isolated decisions, the authors make the compelling case that courts ought to read the cases in the context of this animating principle, and require proof of some culpability to sentence a felony murderer to death. They propose recklessness as the appropriate mens rea for achieving the level of proportionality required by the Eighth Amendment.
Thus, the authors read Enmund and Tison together as distinguishing ordinary felony murder, which requires no intent to kill, from felony murder accompanied by a mens rea of recklessness toward the life of the victim. A proper reading of the cases, according to the authors, would mean that cases in the former category are ineligible for death under the Eighth Amendment, while death sentences in cases in the latter category would be constitutional.
Perhaps, though, the authors do not go far enough. In non-felony murder cases, a mens rea of recklessness seldom if ever should warrant a death sentence. Felony murder should be no different.
Without overruling Tison, though, it seems impossible to rule out the death penalty for felony murder altogether. But one can read Enmund as the bright-line rule, with Tison as the extreme, distinguishable exception. Under such an approach, felony murder for a death sentence would violate the Eighth Amendment even in cases of reckless murder, absent extraordinary facts.
The unusual factual posture of Tison lends credence to such a reading. Gary Tison cruelly and unnecessarily murdered an altruistic family, including two children under the age of three. Tison, though, died during the ensuing manhunt, and the court was thus unable to give him the death penalty. Tison’s two sons received the death penalty for felony murder, despite their lack of participation in the actual killing. They had helped their father escape from jail, but were not aware that he would kill the family and were not immediately present when he did. Indeed, the Arizona Supreme Court later set aside their death sentences.
To be sure, the authors are correctly trying to move the lower courts back in the direction of Enmund, and away from Tison, by reading the cases as at least requiring reckless killing. The value of their article comes from its potential to cause lower courts to rethink their application of Enmund and Tison and choose to restrict the current trend of carte blanche use of felony murder as a basis for imposing death sentences on offenders that did not intend to or attempt to kill.
Finally, their useful article also underscores a deeper problem in both the Supreme Court and the lower courts—the failure to apply the Eighth Amendment to cases involving excessive and disproportionate punishments. The felony murder disproportionality that the authors eloquently write about—imposing the death penalty for killings with a mens rea of negligence or less—is but one of example of where the Court has failed to intervene.
Juvenile life-without-parole sentences provide another obvious example, with the United States being the only country in the world that allows such sentences. Many adult life-without-parole sentences also seem obviously excessive, as many are the product of the abolition of parole in some states and thus are essentially conversions of fifteen-year sentences to death sentences. Many mandatory sentences (whether short or long) also deserve constitutional scrutiny, both for the excessive nature of the penalty and for the denial of individualized consideration of mitigating circumstances.
Unlike with the First Amendment, Fourth Amendment, and the Fourteenth Amendment, the Court has long displayed a hesitancy to use the Eighth Amendment to restrict the power of the state governments, even when such punishments are excessive and disproportionate. Until recently, the Court’s application of the Eighth Amendment to limit non-capital punishments has been virtually non-existent. Perhaps the backlash to Furman v. Georgia explains part of the Court’s hesitancy, as well as its flawed decision to use a majoritarian evolving standard of decency to define what punishments unconstitutionally infringe on the rights of the political minority under the Eighth Amendment.
Nonetheless, the Court’s recent application of the Eighth Amendment to juvenile LWOP cases in Graham v. Florida and Miller v. Alabama holds promise. One can only hope that the authors’ work in the Notre Dame Law review will likewise spur the Court to update its Eighth Amendment jurisprudence with respect to felony murder.
Cite as: William W. Berry III, Rethinking Capital Felony Murder
(February 12, 2018) (reviewing Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder
, 92 Notre Dame L. Rev.
1142 (2017)), https://crim.jotwell.com/rethinking-capital-felony-murder/