Apr 18, 2024 Mary Fan
Trying to unmask Seattle Police Department police officers who may have participated in the insurrection at the U.S. Capitol on January 6, then-law student Sam Sueoka turned to public records requests under state sunshine laws. Six police officers who were in Washington, DC on January 6 sued Sueoka and other members of the public seeking information, aiming to block release of the information. Meanwhile, the Seattle Office of Police Accountability found that two of the six officers had violated departmental policies or laws in their conduct during the U.S. Capitol riot on January 6. The report did not disclose the officers’ names. A state Superior Court Judge sided with Sueoka on the right to public disclosure, but a panel of the state appellate court reversed, siding with the police officers on secrecy. This case involving my local police department—reportedly home to the largest number of officers identified as in DC during the January 6 events—is just a recent example of the myriad legal battles surrounding police secrets and illustrates why I find Christina Koningisor’s article Police Secrecy Exceptionalism in the Columbia Law Review so timely and important.
Koningisor explains that every state has “transparency regimes”—sets of statutes that include public records law that give the public access to information, open meetings and open-data laws, among other obligations. Police departments are theoretically an agency like other governmental agencies bound by such transparency regimes. Yet police departments enjoy numerous protections that maintain opacity and police secrecy. Koningisor excavates the web of carve-outs and exemptions for law enforcement that together creates what the article terms “law enforcement exceptionalism” that the article analogizes to the secrecy that national security agencies enjoy. Protests and pain over police killings have led to radical transparency-based ideas like police-worn body cameras and reforms in police transparency laws. Yet, as Koningisor’s excellent article shows, the matrix of laws and practice exempting police departments from transparency regimes remain robust, maintaining police secrecy exceptionalism.
A valuable contribution of the article is to collect and explore the web of transparency laws and exemptions scattered across the codes of fifty states. Koningisor offers a taxonomy of exemptions, such as law enforcement-specific exemptions, investigation-related exemptions, privacy-related exemptions, public safety-related exemptions, and even trade secrecy-based exemptions.
Amplifying the impact and analyses, Koningisor does not just stop at the laws on the books. Rather, the article tackles the realities of statutory construction and constriction by police and bureaucratic practices, not just statutory text and judicial interpretation. Recalcitrant and narrow construction by responding police agencies can magnify the web of exemptions and exceptions, and narrow access provisions.
Studying myriad practices on the ground across fifty states with numerous local departments is a challenge. Methodologically, Koningisor draws on the nonprofit news site MuckRock’s dataset of public records requests and law enforcement agency responses. MuckRock’s dataset is generated via its web site, which gives users a streamlined way to submit public records requests. The dataset contained approximately 21,000 requests to 3,500 state and local law enforcement agencies across all 50 states. The dataset also contained about 24,000 requests to other agencies not involved law enforcement. Koningisor found that the requests submitted to law enforcement agencies via MuckRock had worse response rates, rejection rates, and other metrics of nondisclosure than requests submitted to agencies not involved in law enforcement.
Sueoka, the law student who filed the January 6-related public records requests, is currently applying those precocious talents as a public defender. This also is illustrative of the practical utility of a strong command of police transparency and secrecy regimes. Access to information can make a difference in cases and clients’ lives. Understanding how to navigate the web of transparency regimes and exceptions has great practical utility. This is another reason why I celebrate Koningisor’s article. One of the highest compliments I can give is that the article bridges academia and practice, and has real-world as well as scholarly impact.
Mar 22, 2024 Jonathan Simon
Katherine Becket, Monica Bell, and Forrest Stuart,
Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022).
This short book chapter by three of America’s leading scholars of law, policing, and social inequality, Katherine Beckett, Monica Bell, and Forrest Stuart, may be easy to miss because of its publication in a specialized edited volume on drug policy, policing, and harm reduction, rather than the prominent law or sociology journals in which these authors frequently publish. That would be a shame however (thus this jot), because it packs some crucial insights about our current conjuncture in criminal justice reform in the United States, with major implications for how we consider the future.
First, it is a helpful corrective to the recent revisionist accounts of the war on drugs. These revisionist accounts have challenged what they take to be an exaggerated estimation of the significance of the war on drugs in producing mass incarceration by some of the most influential narratives on the latter. (I’m thinking here in particularly of John Pfaff’s very important book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) and its critique of Michelle Alexander’s a The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).) Pfaff corrects the shorthand logic that equates mass incarceration with the war on drugs by demonstrating that most drug sentences are short compared to those for violent or serious property crimes, and that sentences for drug crimes, especially possession, only accounts for a fraction of the growth in incarceration we experienced during the era of “mass incarceration” (the end of which we are still awaiting).
Beyond Harm Reduction Policing however is an important corrective to that corrective. It reminds us that regardless of its contribution to the overall incarceration rate, a punitive response to drug crimes beginning in the 1980s was one of the defining features of the punitive turn of the late 20th century, and one that had a particularly major impact on communities of color. Drug arrests, for example, grew more than fourfold between 1980 and 2006 (when they peaked). Such arrests did not mean that someone would end up in a cage. The growth in supervisory sentences was far greater, touching more than a million people a year at its peak compared with 400,000 with a sentence of incarceration in jail or prison. Nevertheless, each one of these sentences represented an exposure to physical control (and existential threat) by police officers, and at least a short exposure to jail in most cases.
The impact of this was hugely concentrated on Black Americans. Between 1980 and 2006, the rate of arrest for Black Americans went from 5 per 1000 persons to more than 15 per 1000, while the rate for White Americans grew from 2.2 to 5 per 1000. Each one of these arrests, even if it did not result in a sentence of confinement to a jail or prison, had specific and almost certainly negative effects on the legal consciousness and economic prospects of the person arrested.
A second important point is that while the peak of arrests may have been reached in 2006, it remains very elevated, and far above the number of arrests in 1980 (by about a million extra arrests per year). The authors point out that suburban and rural law enforcement agencies are significant sources of these high arrest levels. Much of the perception that the “war on drugs” is over has developed in large cities, where attitudes toward harsh drug policies began shifting toward “harm reduction” as early as the 1990s. In the suburbs and in rural areas, political tolerance for drug users remains low and support for the use of criminal sanctions to discourage it remains high.
The recent pattern of growing suburban poverty and urban gentrification means that these harsh policies remain highly concentrated on communities of color, particularly economically marginalized Black communities. These suburban and rural law enforcement agencies feed arrests into prosecution offices that are less likely to have seen a “progressive” trend than their urban neighbors. Because state laws remain remarkably punitive toward even drug users, and especially punitive toward drug sellers (a frequently ambiguous distinction), these defendants face harsh consequences, especially if they do not agree to a quick guilty plea. Much of the perceived reduction in the “war on drugs” has come through the use of discretion by more progressive urban prosecutors, leaving the punitive armory of our penal codes largely intact.
Many have also assumed that the recent refocusing of the public perception of the drug crisis from “crack cocaine”, largely associated with Black communities, to opiate addiction, largely associated with whiter rural and suburban communities, was yielding a more sympathetic approach to those caught in addiction and more readiness to offer treatment rather than punishment. A closer look, offered in the chapter, suggests that there may be more concern with trying to help those willing to seek treatment, but also growing interest in punishing harshly those perceived as promoting these overdose prone substances.
Third, the chapter offers an important and critical gaze at the first wave of reforms that are taken to have tempered the harshness of the war on drugs. The authors offer a compelling case that reforms address both the harms of the punitive system but also the harms of unmanaged addiction and unregulated drug markets. Perhaps the most popular reform has been the “drug court,” about which the authors are particularly (and persuasively) skeptical. These programs typically give judges the power to offer the dismissal of criminal charges for those defendants whose crimes were drug offenses or driven by drug addiction, and who successfully complete court-mandated programs–typically abstinence-based treatment programs. But these judges retain and use the power to criminally punish those who relapse during treatment. These programs often hold unrealistic expectations of whether participants can achieve abstinence without relapses, and punitive attitudes toward those who do relapse. Overall, the drug court movement has added to the power of criminal courts rather than reducing their punitive potential.
The authors also offer a critical but more positive view of the leading alternative harm reduction approach, pioneered in Seattle and San Francisco under the acronym LEAD for Law Enforcement Administered Diversion. In its original version, LEAD allowed police to use their discretion to place people arrested for drug crimes (or drug related property crimes) directly into treatment programs without leaving the power to prosecute over their heads (participants could be prosecuted for new crimes but not for their original arrest offense). This diversion approach is superior in recognizing the likelihood of temporary relapse into drug use and the need to truly remove the threat of punishment. The main critique of these original programs was that they gave to police the power to select who could participate, leaving the major sources of drug arrests to be the major determinants of who received diversion.
The newest versions of the program, currently under experiment in Seattle, take this power away from the police and give it to public defenders, social workers, and families. Courts now operate as the gatekeepers. This is not without punitive risk, but it also assures transparency. The best version includes close monitoring of the pool of people arrested and those actually selected, to detect racial bias that may disfavor people of color, and particularly Black people, who may be perceived as less amenable for treatment. These new versions of LEAD are an important sign that abolitionist practices can be realistic as well.
Cite as: Jonathan Simon,
Don’t Dismiss the War On Drugs Too Fast, JOTWELL
(March 22, 2024) (reviewing Katherine Becket, Monica Bell, and Forrest Stuart,
Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022)),
https://crim.jotwell.com/dont-dismiss-the-war-on-drugs-too-fast/.
Feb 21, 2024 Eric J. Miller
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.
Jan 18, 2024 Elena Larrauri
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/.
Dec 6, 2023 Jessica M. Eaglin
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.
Nov 6, 2023 SpearIt
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.
Oct 10, 2023 Maartje van der Woude
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/.
Sep 14, 2023 Jennifer Chacón
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/.
Jul 21, 2023 Maximo Langer
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.
Jul 3, 2023 Christopher Slobogin
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.
