Sep 9, 2013 Elizabeth Joh
The relationship between antisocial behavior and criminal legislation seems straightforward. When people behave in undesirable ways, legislators respond by prohibiting that behavior and imposing punishments for transgressions: so far, so good. What if, though, these laws actually (though unintentionally) facilitated crimes? This counterintuitive idea is central to David Michael Jaros’s provocative article, Perfecting Criminal Markets.
Under an economic approach, legislators deter crimes by creating potential punishments that outweigh any perceived benefit to the would-be criminal. In reality, though, the creation of these crimes results in the emergence of black markets, whether for illegal drugs, prostitution, or other prohibited goods and services. Thus, closing the border creates a market for human smuggling, and criminalizing the sale of certain drugs creates a black market for their purchase and sale. While the existence of criminal markets is well trod scholarly ground, Jaros offers a fresh insight about their operation. Criminal markets also create new opportunities and new markets for individuals that would not exist without the creation of the “first order” crime. The illegal immigration market leads to the smuggling of persons across the border, often in deadly conditions. The illicit drug market leads to the sale of fake illegal drugs and gun violence. A common legislative response to these “second order” problems—a new round of criminalization—creates a dilemma.
While the prohibited conduct of these second order crimes poses independent social harms, it also presents a surprising benefit. From an economic analysis, second order crimes actually promote market failures: a result that shouldn’t be thwarted. Like markets for legitimate goods, criminal markets—especially the market for illicit drugs—face distortions. Information asymmetries between buyers and sellers permit the sale of fake illicit drugs, just as used car buyers risk “lemons” in an unregulated secondary market. Because illicit drug market participants lack access to legitimate legal recourse, they resort to guns, an additional cost and risk attendant to the illegal drug commerce. That same gun violence facilitates reduced competition among sellers, thus raising prices and reducing the number of drugs sold.
Yet when legislatures decide to criminalize or to increase penalties for these second order crimes, they strengthen rather than weaken criminal markets. By making the sales of fake drugs a crime—something that more than thirty five states do—legislatures make the drug market more efficient, just as state consumer protection laws, for example, protect buyers from buying defective used cars. By adding additional penalties to those smugglers of illegal immigrants, Congress perfected the market for illegal immigration by encouraging safer transportation by smugglers. Jaros asks us to set aside the “criminal” label from these markets for a moment to help demonstrate how second order criminalization is really little different from the ways in which legislatures help make legitimate markets work more efficiently.
How should we understand this relationship between first and second order criminalization? Jaros raises several points that demand attention from the criminal justice audience.
First, because second order crimes have the potential to encourage more crime, legislators should be careful when criminalizing second order antisocial conduct. Jaros does not suggest that legislators should avoid second order criminalization altogether. What legislators must appreciate, however, is that there is a complicated relationship between first and second order crimes that urges some balancing of the relative costs and benefits of further criminalization and the potential enhancement of the first order criminal market. (I’m less confident that police and prosecutors can or should take into account these complex relationships, but this is a minor objection.)
Second, the identification of second order crimes adds a further dimension to the overcriminalization debate, the long running scholarly critique of the ever growing number of substantive criminal laws on the books. If criminal markets give rise to new criminal opportunities, legislators should realize that each expansion of the criminal law “plants the seeds for new antisocial activity to be criminalized.” (P. 37.) Thus at least some of the overcriminalization phenomenon might be explained by the interplay between first and second order criminal markets.
Finally, Jaros explains how second order crimes might be useful in the debate about harm reduction strategies that serve as alternatives to criminalization, such as needle exchanges or HIV testing for sex workers. Such policies often lack broad acceptance on the ground that they promote rather than deter the undesirable behavior, even if they might confer benefits, such as stanching the spread of communicable diseases. Second order crimes provide harm reduction strategists with a powerful rejoinder. If second order crimes might be said to condemn antisocial behavior even as they facilitate crime, the same could be said of harm reduction strategies, which have the additional benefit of promoting social welfare for the people involved in these criminalized behaviors.
I’m generally skeptical of the use of economic theories to rationalize criminal law. Many crimes are the result of impulsive behavior that no cost-benefit analysis could predict. Yet in Perfecting Criminal Markets, Jaros uses the concept of second order crimes to generate novel insights about several different criminal law debates. With his original analysis, Jaros can persuade even the most hidebound that automotive “lemons” and fake crack cocaine might have something important in common.
Jul 24, 2013 Christopher Slobogin
The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.
These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.”
More specifically, Chesterman argues for the adoption of three principles. The first principle is the “the essentially public nature of the power being exercised.” The second is the “the need to ground that power in the rule of law.” Finally, he stresses “the importance of addressing not merely the collection of intelligence but its use by the state and all those with whom the intelligence is shared.”
It is hard to quibble with these three principles. But Chesterman’s thorough critique of past and current practices also makes one pessimistic about the ability to implement them. For instance, the first principle requires public debate about how intelligence-gathering should be regulated. But in the wake of 9/11, the most popular view may well be the one expressed by Director of Intelligence Mike McConnell in commenting on the U.S. Congress’ deliberations over national security wiretapping: “The fact we’re doing it this way means that some Americans are going to die.” Similar objections have been raised about further exposing the NSA’s phone record collection activities. Chesterman’s public principle is also hostile to unjustified privatization of intelligence work; Chesterman rightly argues that part of the problem here is the legislative failure to define those “inherently governmental activities” that may not be outsourced. Yet, even he is hesitant about placing surveillance or analysis of the fruits of surveillance in that category. As he notes in Chapter Six and the NSA controversy again highlights, mass surveillance cannot succeed without private communication companies, and data analysis is sometimes best carried out in think tank-like settings such as the Rand Corporation.
Chesterman’s book also does not inspire hope about the type of law that debate (whether it is carried out in public or private) is likely to produce, and thus also calls into question the viability of his second, rule of law, principle. Chesterman provides example after example of elastic legislative or regulatory rules that either exempt or place only minimal restrictions on government intelligence officials, as well as numerous illustrations of how those who are supposed to “watch the watchers” have been unable or unwilling to do so. It is telling that, as he notes, most of the reforms that have occurred are the result of media diligence, not the consequence of government oversight (again, see the NSA controversy). One of the best quotes (of many) in the book is Congressman Norman Minetta’s description about why legislative monitors are like mushrooms: “the intelligence community ke[eps] them in the dark and fe[eds] them a lot of manure.”
Chesterman is not claiming, however, to have found a method of ending abuse, only a framework for containing it. The broad outlines of government authority can certainly be subject to the political process, as has occurred with the Patriot Act in the United States and the Security Service Act in Great Britain. Perhaps most importantly, publicly enacted statutes can set out which agencies are permitted to carry out national security operations and to what extent. In the United States, which has 16 agencies involved in intelligence-gathering, this latter goal ought to be paramount.
The importance of bureaucratic role definition comes to the fore in implementing Chesterman’s third principle, to the effect that regulation should focus on the use, rather than the collection or retention, of information. As he puts this idea in his last chapter, “accountability for the activities of intelligence services must be consequence-sensitive.” Few limitations should be placed on gathering data, but its dissemination should be closely monitored.
As I have written elsewhere, several objections to this focus on use-regulation can be raised: “[L]imiting information flow [among government agencies] can be very difficult . . . . And even if the information gathered . . . is somehow confined to a limited and discreet group and is not misused or inaccurate in any way, routine suspicionless and covert transaction surveillance can eat away at whatever trust is left between government and its citizenry. . . .” Now that we know more about what the NSA is doing, all of us feel less secure about the government’s agenda. Chesterman does not completely discount these points, but views them as naïve in return. Government, he says, already is acquiring vast amount of information about each of us and will continue to feel compelled to do so given current threats. Furthermore, he asserts, most of us are willing to accept that tradeoff (his “social contract”). Thus, rather than try to draw fine lines about what can and cannot be collected, and from whom, we should accept the full consequences of such a contract. Rather than profile, he suggests, everyone should be subjected to airport checks. Rather than limiting DNA sampling to convicts, the database should be universal.
Chesterman is to be congratulated for sharpening one of the most important debates of our time, a debate that is particularly intense at the current moment. I think his stance ultimately is a sustainable one, under two conditions, both consistent with his three principles. First, an elected body that is truly representative of the affected polity must authorize these types of surveillance dragnets, on the express understanding that its members too will be subjected to them. Second, use of information so obtained must be limited to preventing or prosecuting serious threats, upon pain of significant penalties. This is a social contract that a democracy should find acceptable. We may soon find out whether that is the case.
Further thoughts on Chesterman’s book, as well as commentary about another recent book on related matters by Stephen Schulhofer,, can be found in What is the Essential Fourth Amendment?.
Jun 21, 2013 Erin Murphy
On February 15 of this year, the Department of Justice and the National Institute of Standards and Technology in the Department of Commerce announced their partnership in forming a National Commission on Forensic Science (the Commission). The aim of the Commission is to develop “a framework for coordination across forensic disciplines under federal leadership” and to establish national standards for forensic scientists. Both critics and defenders of forensic science in the criminal justice system largely applauded the announcement. Jennifer Laurin, however, probably let out a sigh.
That’s because Laurin’s important new article, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, challenges the assumption that fixing the nation’s crime laboratory problem will in turn solve its integrity-of-forensic-evidence problems. Instead, Laurin identifies the analysis of crime scene evidence as but one small part of a greater chain of events that starts when forensic evidence comes into existence and ends with its appearance at trial in a criminal case. Before evidence ever gets seen in a lab, in other words, it must first be collected, preserved, and submitted. And, after submission, evidence may only be as useful as prosecutors allow it to be, for instance via explicit requests for testing, receptiveness to the results that are generated, or timely disclosure and access during discovery prior to trial. Yet, she laments, these critical moments have evaded significant scrutiny even though upstream users of forensic science—police and prosecutors—“… select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases” (p. 1055).
Indeed, most readers will be shocked to learn that rates of evidence collection for serious offenses can hover around one in five, or that actual testing of evidence occurs in still fewer instances (disclaimer: I recently co-authored a Slate piece making this point). And, she notes, many scenes are attended only by patrol officers, who may not have received any specialized training and may have other pressing concerns. Even if a scene is searched, evidence may be collected in a way that overlooks important pieces or compromises the integrity of that which is gathered.
Similarly, in a world of backlogs, prosecutors do not always have access to forensic evidence at critical moments like charging, plea negotiating, or even sentencing. In fact, a trial is often the precipitating reason to jump evidence to the front of the queue for analysis, and yet over ninety percent of cases never make it to trial, but instead are resolved by a guilty plea. In those cases in which testing occurs, as Laurin notes, it may happen too late for it to exert much influence over the judicial process. A prosecutor who has already committed to a theory of the case may dismiss or minimize contradictory test results, even if they call into direct question the guilt of the suspect. In other words, to the extent that objective science might whisper in a prosecutor’s ears, it often only gets a chance to do so long after it will be heard as anything other than confirmatory or inconclusive.
Laurin’s keen observations in turn all raise the question of why? Why have we systematically ignored these “upstream users” and focused instead on only one small part of the overall problem? Four possible answers emerge. First, perhaps the crisis of bad science was simply so bad that triage pointed toward first tackling the problems of the laboratory. But if that is the case, then what explains the fact that these upstream actors are still ignored when it comes to techniques with more robust scientific footing—like DNA testing? A second answer might be that laboratories made easier targets than lawyers, because lawyers like to protect their own. But that cannot be right, because plenty of accusatory ink has been spilled in the direction of judges (attacked as too complacent, too fearful of science, and too susceptible to the bewitching effects of the white lab coat), defense lawyers (attacked as either incompetent or too willing to roll over in the face of “science” rather than exercise their duty of zealous representation), and even jurors (attacked as beguiled by the so-called “CSI effect”). A third possibility might be the problem of lack of data about the precise roles and responsibilities of police and prosecutors in the generation of forensic evidence, but that seems to falter as well. The major public attention heaped upon crime scene laboratories has been rather recent, and there is no reason that the current interest in crime labs ought not also have spilled over onto police and prosecutors, at least with regard to their role in the forensic evidence process.
To my thinking, the likeliest reason for the general absence of close scrutiny of prosecutors and police when it comes to diagnosing the problems of forensic evidence today is simple: we do not like to question police and prosecutorial decision making, and we do not like to demand that police and prosecutors account for their exercises of discretion. Closer attention to law enforcement’s role in the generation of forensic evidence would entail tighter oversight of everything from policy choices to physical plants to administrative infrastructure. Consider that one study noted that “crime scenes investigated during the 2–10 p.m. shift—when calls for service peak and officer time is most constrained—are least likely to yield a DNA profile.” To mandate a certain set of procedures at every crime scene would directly impact a department’s capacity to engage in other aspects of its law enforcement function. Ignoring the complicity of prosecutors and police in shoring up a shoddy system of forensic science may simply be the natural byproduct of the greater hands-off approach to scrutinizing the priorities set by those offices more generally.
This may also be why the national dialogue about the causes and sources of wrongful conviction shies away from straight talk about the overzealous police and prosecutors who have turned a blind eye on exculpatory or questionable evidence. Instead, both groups have received a pass because the law tends to conceive of prosecutorial or police abuse of power in terms of intentional malfeasance, rather than as a byproduct of the same kind of structural and cultural expectations that characterize crime labs. But if an expert tells a prosecutor that she can tell whether the victim was screaming by examining the shaft of hair found at the scene, do we not expect the prosecutor to have the wits, and then the duty, to verify that the expert’s claims are supported by legitimate science? If the tales of exoneration have made scoundrels out of eyewitnesses, lab analysts, and even defense lawyers, then it is about time that they stop leaving prosecutors and police investigators relatively unscathed.
Author’s note: This jot is adapted from Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?, 91 Tex. L. Rev. (forthcoming, 2013).
May 17, 2013 Mary Fan
Margaret Hu,
Biometric ID Cybersurveillance, 88
Indiana L.J.__ (forthcoming 2013), available at
SSRN.
The memory seems almost quaint. While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones. Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports. Part of this talent came from the wisdom and judgment honed by experience.
The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned. She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.” She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking. For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.
The future is unfolding now, her article suggests. Proposals such as a biometric national ID are just ideas now, she notes. But in myriad ways, methods and modes of identification are developing toward such a future. Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future. Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.
There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power. Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle. Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.
What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges. Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.
Hu’s work also is valuable in its special attention to the deployment of controversial identity tracking and verification methods in the immigration context. The population at large might resist what Hu terms “biometric ID cybersurveillance” to encompass burgeoning government databases and more sophisticated modes of technology-aided identification. So start with people designated as aliens. Attentiveness to identity surveillance in the immigration context is thus helpful for understanding where and what controversial practices may take root more generally.
Apr 16, 2013 Susan Bandes
The question of how it feels to do the work we do receives little attention in mainstream legal literature. We tend to treat the very acknowledgement of our work’s emotional aspects as downright unlawyerlike — a challenge to law’s rational and rigorous essence. Yet as this book beautifully illustrates, the question of how it feels to do our work cannot be cordoned off from the issues at the center of the teaching and practice of law: what it means to be an ethical, zealous, effective counselor and advocate with a satisfying, sustainable legal career.
Susannah Sheffer sheds light on all these issues, though she sets out to answer a narrower question: what it is like to be a capital defense lawyer specializing in post-conviction challenges. What is it like for these lawyers, she asks, not in the courtroom or the offices of the capital habeas unit, but “in the middle of the night, in the pit of the stomach, in their last visits or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?” What is it like to do this work in the face of incomprehension and even hostility from the larger community? What motivates such lawyers and how do they keep doing what they do? Shaffer explores these issues in conversations with twenty capital defense lawyers in this insightful and deeply affecting book.
There have been some terrific books written about capital lawyering — books on the craft (such as Welsh White’s Litigating in the Shadow of Death), accounts of particular cases (such as John Tucker’s May God Have Mercy), memoirs by capital lawyers (such as David Dow’s The Autobiography of an Execution and my colleague Andrea Lyon’s Angel of Death Row). Sheffer comes at this topic from a unique angle, and her approach yields unique rewards. As she describes, she has been immersed over the years in other “what is it like” explorations involving the criminal justice system and violent loss, most recently as project director and staff writer for Murder Victims’ Families for Human Rights. She is a gifted interviewer; one of her achievements here is her ability to create relationships of trust with lawyers who are unused to exploring the emotional aspects of their work and reluctant to make themselves the central topic of conversation. She is also a lucid and lyrical writer. The resulting conversations, woven into a compelling narrative, are searching and thought-provoking. They provide insights into the emotional aspects of lawyering that I have found nowhere else.
The book is organized topically; it explores the motivations for becoming a capital defense attorney, the responsibility (the sense of “it’s on me to stop this execution”), the emotional impact of the work on the lawyer, the culture of not talking about this emotional impact, the relationship with the client (the complex tasks of keeping hope alive, giving realistic counsel, and maintaining trust), the emotional dynamics of fighting against overwhelming odds, the complicated notion of a “victory” in the post-conviction context, and two final chapters on getting out of the work and staying in.
Some of the questions explored are unique to capital defense law: how to talk to a client who is about to walk into the death chamber, whether to attend the execution of a client, how to go on to the next case after yet another client is executed, how to find work-life balance when you are the last barrier between your client and the death chamber. In one lawyer’s haunting phrase, “Our clients can’t afford for us to be finite, or frail, or tired.”
In the concluding chapters, Sheffer and her interviewees meditate on whether the support and camaraderie of those in the field is enough, or whether there should be more institutionalized mechanisms for dealing with the pain, trauma and other emotional challenges of the work. Although it is not discussed explicitly, Shaffer briefly raises a more basic question at the close of her book — what it means to impose a penalty that requires people to drive themselves to try to be infallible; to carry this sort of weight. As she says, the death penalty is “something we decide to do.” For that reason, “its impact deserves our fullest attention.”
Thus this is a book about capital punishment, but it is about lawyering in broader contexts as well. I will highlight just a few of the issues on which this book sheds new light — issues whose cognitive dimensions have been discussed many times, but too often without attention to the affective dimension. One is the issue of “cause lawyering” and why lawyers choose to do it. These conversations capture the complex blend and broad sweep of emotional and intellectual motivations with satisfying nuance. Another is the question of role differentiation (how do we represent people who have done terrible things?). As I’ve argued, this is not a complicated ethical issue, but it is a difficult emotional issue. The book contains searching discussions of the lawyers’ loyalty to and empathy toward their clients, their mindfulness of the pain their clients have inflicted (the post-conviction lawyers in these pages rarely mention actual innocence claims), and the challenges of feeling both at the same time. Finally, there is the implicit question at the heart of this book: What would we gain, for ourselves, for our profession, for our system of justice, if we recast the emotional aspects of lawyering as an integral part of lawyering discourse?
Mar 15, 2013 Jennifer Chacón
The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between. For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism. In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework. In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.
Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.” Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments. First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions. Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control. Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention. Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement. Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature. He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter.
In Part II of the article, Sklansky introduces his concept of “ad hoc instrumentalism.” He defines the concept as thinking about “legal rules and legal procedures simply as a set of interchangeable tools. In any given situation, faced with any given problem, officials are encouraged to use whichever tools are most effective against the person or persons causing the problem.” Sklansky argues that this is a developing trend in law and legal institutions that is not limited to the criminal/immigration merger, but that does help to explain an important aspect of that merger. In the paper, he points to national security and parole as two areas characterized by ad hoc instrumentalism. Sklansky notes that ad hoc instrumentalist policies can be efficient and pragmatic, but that they also have weaknesses.
Part III of Sklansky’s article focuses on these weaknesses and elaborates on the particular problems that emerge in the context of the criminal/immigration merger. In particular, he cites concerns that ad hoc instrumentalist approaches weaken the rule of law and create accountability problems. And while he concludes that rule of law concerns generated by such policies ultimately are somewhat amorphous, accountability concerns provide a powerful critique of ad hoc instrumentalism – both in general and in the context of the criminal/immigration merger in particular.
Sklansky depicts in some detail the ways in which enforcement policies developed around criminal/immigration enforcement generate serious accountability problems, obfuscating the origins of rights violations and obscuring the sources of potential remedies. In his view, the general accountability concerns created by ad hoc instrumentalism are exacerbated in the context of the criminal/immigration merger “by two other features of our newly merged system of immigration enforcement and criminal justice: its bureaucratic opacity and its selective application.”
Sklansky’s theoretical framework contributes to a better understanding of the dynamic at work in the merger of immigration and criminal law. His efforts to explore the parallels to the parole system, for example, provide a very useful way to refine existing thinking about the problems and concerns raised by this merger. And by pointing out what makes the criminal/immigration merger different – and perhaps more problematic – than other domains of ad hoc instrumentalism, he also contributes in important ways to the existing literature concerning “crimmigration.”
In attempting to diagnose just what is wrong with the criminal/immigration merger, Sklansky gets at issues that have been a constant source of struggle in my own work. Why is this a problem? Why does it bother me? Is the system unjust? For example, in my articles Whose Community Shield? and Managing Migration Through Crime, I attempt to give some explanation of what is troubling about current trends. I focus largely on rule of law concerns. But I freely admit that I had persistent difficulty articulating theoretical objections that adequately captured my concerns. David Sklansky offers a coherent and plausible theory of the problem, and in so doing enhances the ongoing debate around these issues.
Ultimately, I am not sure that I have as much faith as Professor Sklansky in the power of greater transparency to alleviate the harms that he has diagnosed — both because there is a significant democracy deficit in the formulation of immigration policy (given the non-voting status of the population upon which immigration law is imposed), and because I am perhaps far more pessimistic than the author “that making matters more accountable could wind up making them uglier” given the pervasive, and often racist, anti-immigrant sentiment evident in popular discourse. That said, I deeply appreciate his efforts to put his finger on what is going wrong here and how we might hope to see it made right.
Jan 30, 2013 John Hursh
Michael J. Kelly, Prosecuting Corporations for Genocide Under International Law, 6 Harv. L. & Pol’y Rev. 339 (2012).
As his title suggests, Professor Michael J. Kelly offers a sound legal argument for prosecuting corporations for genocide under international law. While there is much to admire about this article, perhaps its greatest strength is the straightforward manner in which Kelly systematically refutes possible challenges to his position and the even-handed tone Kelly employs when discussing the often divisive topic of corporate regulation. Rather than resorting to polemics or incendiary rhetoric, Kelly begins with the basic premise that “anyone who commits genocide should be held accountable” (339). Noting that international law holds individuals, states, and organizations accountable for genocide, Kelly asks simply: “Why not corporations” (339)?
Kelly grounds much of his argument for prosecuting corporations for genocide on the lack of distinction between a legal and natural person in the 1948 Genocide Convention (339). Applying the interpretative framework set forth in the Vienna Convention on the Law of Treaties, Kelly moves from the treaty text to the travaux preparatoires, where he finds no definitive evidence that delegates intended to include or exclude corporations from the treaty’s reach. Still, citing the “plain meaning of the term ‘persons’ at the time” and the drafters’ decision not to delineate between legal and natural persons, Kelly argues that corporations should be considered persons under the convention (346). He bolsters this argument by noting an accordant view from Harold Koh, Legal Advisor to the U.S. Department of State, and by appealing to our basic sense of fairness to recognize that the unprecedented growth and influence of corporations requires a similar level of responsibility (347).
Kelly uses the bulk of his article to refute challenges to his position that corporations can and should be held criminally responsible for genocide under existing international law. He demonstrates that corporations are subjects of international law (343–45), subject to the Genocide Convention (345–47), and can form the requisite intent necessary to support a charge of genocide (357–61). Kelly also discusses the application of vicarious criminal liability to corporations in relation to a charge of genocide, focusing on the doctrine of command responsibility (348–56) and to a lessor extent respondeat superior (356–57). Finding command responsibility to be the most established doctrine of vicarious criminal liability, Kelly concludes that this doctrine “holds the most promise for application to corporations under international law” (348). This is a key point. Providing complicit or indirect support to actors engaged in genocide or other atrocities deserves prosecution and punishment just as much as active participation. Kelly simply asks that corporations be held accountable for such actions (349).
What is perhaps most distressing about the lack of meaningful corporate regulation is the striking disproportionality of increased corporate rights compared to corporate responsibilities. Kelly rightly criticizes this disproportionality, noting corporations enjoy significantly increased rights—most recently freedom of speech (340, citing Citizens United vs. FEC, 558 U.S. 50 (2010))—and staggering economic clout (341). Corporations, however, are not subject to anything near a corresponding level of responsibility (340–41). Such an imbalance requires correction. But, as Kelly notes, while many commentators recognize the need for a recalibration of corporate rights and responsibilities, the law has not met this challenge: “As the relative economic and political power of corporations expands, there is increasing recognition that corporations should bear greater responsibility for their actions; however, the law has yet to evolve in this direction” (341).
Going to such lengths to demonstrate that corporations can and should be held legally accountable for genocide is both necessary and absurd. It is necessary because of the legal and political climate that largely excuses corporate crime and malfeasance. It is absurd because arguing that legal fictions such as a corporate shell and veil effectively shield an organization from prosecution for the crime of crimes is nonsensical and callous. Here, Kelly rightfully criticizes the legal academy for failing to address the role of corporations in genocide, atrocities, and other human rights violations. “‘No one seems to know what to do about it. It almost seems as through a certain level of corporate crime is just assumed as a real-life ‘cost of doing business’” (342, citing Robert A.G. Monks & Nell Minow, Corporate Governance 29 (4th ed. 2008). Such a view exemplifies a failure to do justice. The cost of doing business cannot include excusing criminal actions. Moreover, given the economic and political power of corporations, ending corporate impunity is every bit as necessary as ending state impunity to achieve a truly just global order.
Although well-reasoned and engaging, Kelly’s article does contain one shortcoming. While genocide is a prosecutable crime before the International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and Extraordinary Chambers in the Courts of Cambodia, none of these judicial organs have jurisdiction over legal persons. Kelly’s argument relies heavily on the non-delineation of legal and natural persons within the Genocide Convention and the inability to prosecute legal persons significantly undermines his position. While Kelly finds that “this situation can be easily remedied” (362) and notes former ICC Chief Prosecutor Luis Moreno Ocampo’s support for holding corporations accountable for genocide as a counterpoint (362), these remarks do not address this issue in an entirely satisfactory manner.
Kelly’s remedy is to ask the United Nations General Assembly to seek an advisory opinion from the International Court of Justice to resolve the matter. While this solution is eminently reasonable, it does not address the current inability of international criminal courts and tribunals to prosecute corporations. Although problematic, this point is hardly fatal to Kelly’s argument. As he notes, despite the jurisdictional limitations of the ICC and the ad hoc tribunals, international law certainly does not preclude the prosecution of corporations for genocide (365). In addition, domestic courts may also allow for such prosecutions. Since the prevention and prosecution of genocide constitutes a jus cogens norm, any state may prosecute a corporation for genocide if the relevant legal system can hold corporations criminally liable. Here, Kelly points to Canada’s Crimes Against Humanity and War Crimes Act as the best example (365). Admittedly, such prosecutions are likely to be uncommon, but it is important to realize that prosecuting corporations for genocide is possible under existing international and domestic law.
Professor Kelly’s article deserves serious attention from the international criminal law community specifically and international legal scholars and practitioners broadly. As he makes clear, prosecuting corporations for genocide is hardly a radical legal tactic. Rather, it is a logical step supported by the development of modern international criminal jurisprudence beginning with the International Military Tribunal at Nuremberg, the International Military Tribunal for the Far East, and the war crime trials that followed World War II (352–53), and continuing through the ICTY, ICTR, and the ICC (358–60). Kelly concludes by noting that corporations have received “vast latitude” to “pursue profits and increase trade,” which has benefited “people all over the world” (367), but that “darker chapters have also emerged in this larger success story” (367). Holding corporations accountable for these darker chapters—particularly genocide—is necessary if we are to do justice in a meaningful sense. This article offers an insightful and pragmatic first step in finding a reasonable balance between corporate rights and corporate responsibilities and in addressing these darker chapters.
Dec 7, 2012 Jonathan Simon
Leslie Meltzer Henry,
The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011),
available at SSRN.
Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead. Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights. A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state. Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.
Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state. Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present. Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.
For much of the period between the Revolution and the middle of the 20th century, the meaning of dignity was confined largely to the first category, “institutional status as dignity.” Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status. The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts. This began to change in the 20th century, and the change accelerated significantly after World War II.
From this perspective we can see today’s dignity tsunami and the prospects of a dignity-based reform of the penal state as a second phase of a process that began in the 1940s and reached the completion of its first phase in the 1970s. Much of this first wave in US constitutional law took place during the Warren Court and the first (and more liberal) part of the Burger Court. Professor Henry argues that dignity then went into a “period of hibernation during the Burger and Rehnquist Courts.” The second wave that is emerging today during the Roberts Court reflects a significant shift in the kind of dignity being emphasized.
The most recent cases reflect what Henry describes as “personal integrity as dignity.” This line also has origins in classical thought such as Aristotle’s virtue ethics, and has contemporary expounders of “capabilities theory” like philosopher Martha Nussbaum. At its core, dignity as integrity names human excellence as expressed through the virtuousness of particular actors in conditions of great adversity, but also negatively at moments when “people who become vulnerable to their circumstances, express unharnessed appetites, and expose their bodily nakedness or mental fragility.” This means that every person, as a human, is capable of expressing human excellence or virtue in the most exalted forms, even in bearing the quotidian burdens of life and death.
Henry’s “dignity as personal integrity” offers the most exciting foundation for a renewed constitutional attack on America’s penal state in half a century. Recognition of this dignity means that people should be protected against those actions which would fatefully compromise this capacity, or “disintegrate” them, (to take up Professor Henry’s artful term). Typically, these actions are ones taken by the police and prison state. For example, in a Fourth Amendment case, Michigan v. Hudson, Justice Scalia (in an opinion for the Court) explained the constitutional significance of the common law “knock and announce” rule (by which police must announce themselves and seek entry even when lawfully entitled to enter, before forcefully entering absent exigent circumstances) in terms that describe this kind of dignity rather precisely as protecting the individual’s dignity by affording “the opportunity to collect oneself before answering the door.”
Professor Henry suggests that recent cases also sound in a fifth sense of dignity, “dignity as collective virtue,” that is the collective side of “dignity as personal integrity.” Those exercises of power, or even individual choices, that would risk the disintegration of a person (and thus the loss of their dignity as personal integrity) would conversely expose the collective or community imposing or permitting that loss to the judgment of being indecent, inhuman, or uncivilized. This notion of dignity has been visible in a series of recent 8th Amendment decisions in which the Court has ruled out certain punishments for juveniles, including the death penalty and life imprisonment without parole for a non-homicide crime,. Perhaps the most significant recent invocation of this notion of dignity as decency is the Brown v. Plata decision finding that California’s chronically overcrowded and medically under-resourced prisons had created a risk of suffering equivalent to torture, one which was “incompatible with the concept of human dignity and has no place in a civilized society,” and ordering the virtual end of mass incarceration policies in the state that helped launch mass incarceration.
Cite as: Jonathan Simon,
Dignity Is Coming, JOTWELL
(December 7, 2012) (reviewing Leslie Meltzer Henry,
The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011),
available at SSRN),
https://crim.jotwell.com/dignity-is-coming/.
Nov 12, 2012 Myrna Raeder
When we think of the carceral state, girls do not immediately come to mind. While the function of the juvenile justice system is ostensibly rehabilitation rather than punishment, and juveniles are detained not incarcerated, such differences are often illusory to those in the system. But even when we think of juveniles, our first image is likely to be of boys, many of whom were once cavalierly referred to as “super predators” whose perceived violence caused a shift to more punitive juvenile justice policies, including routine transfer of youths to adult courts. While we can debate how much of this image is a false characterization, it has drowned out the presence of girls in the system, except to the extent that they, too, are portrayed as violent gang members.
Francine Sherman is one of the few legal scholars who studies the plight of juvenile girls. An earlier article of hers written with Marsha Levick of the Juvenile Law Center, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 Wis. Women’s L.J. 9 (2003), is still the go-to analysis for supporting the use of gender responsive programming for both girls and adult women offenders. Her current article presents a retrospective of how girls have fared during the last 40 years of evolving juvenile justice policy and includes suggestions about new directions that would benefit this growing but ignored population. Justice For Girls is a significant article that is even better on second reading. Not only does it precisely capture the reasons underlying current policies and make practical recommendations, but it also investigates the difficulties inherent in applying the concept of data-driven research to programming for girls, an issue that has general application for evaluating the much larger universe of adult correctional programs and practices.
Professor Sherman traces juvenile policies aimed at controlling girls’ sexuality, which were first directed at immigrants, and then at girls who were turned into delinquents for being “chronically disobedient.” By the late 1970s “incorrigible” children in need of supervision were overwhelmingly female, with girls comprising 70% of status offenders whose transgressions consisted of acts such as truancy or running away that would not be a crime if committed by an adult. Many girls have continued to run away, some because they are being physically or sexually abused at home or in their placements. Indeed, 75% of runaways are girls, and most have been in multiple placements. Their boots to the ground often lead to contempt rulings, probation violations, and placements in secure detention. Advocates fought hard to prohibit this result when the Juvenile Justice and Delinquency Prevention Act (JJDPA) came up for reauthorization in 2008, but the Act has been interminably stalled by Congressional gridlock. Ironically, the girls we detain for leaving home because they have been subjected to violence often become the women who prosecutors exhort to leave their abusers.
The girls who have caught the media’s current attention are violent gang members, a fact that may help to explain why juvenile girls have increased from 20% to nearly 30% of all juvenile court referrals, which also resulted in an absolute increase in their numbers at the same time the total number of youths entering the juvenile justice system has declined. However, girl perpetrated gang violence is the only noticeable category of female violence not discussed in the article, even though such conduct raises gender issues ranging from gang rape as the price of initiation to the often subservient roles of girls in gang activities including providing sex to gang members and acting as lookouts. Professor Sherman does explain that studies now demonstrate that no fundamental change in female aggression has occurred despite the fact that assaults by girls have skyrocketed. Instead, much of the increase is due to the recharacterization of fights between mothers and daughters, “mean girl” behavior commonly associated with teenage girls, and changed law enforcement practice which makes it more likely that fighting at home will be treated as domestic violence that when reported triggers mandatory arrest. In other words, while referrals to the juvenile justice system for simple assaults by girls have risen dramatically, felony assaults and homicides have not. Unfortunately, such criminalization of acts that would have previously not resulted in delinquency referrals may also produce collateral consequences that are likely to impede the productive transition of girls to adulthood. Sherman would exclude cases of intrafamily violence by minors from domestic violence assaults and batteries and provide better services to youths in chaotic families.
The article provides an excellent summary of recent trends in handling juvenile prostitution, a crime where girls predominate. In the past decade, more attention has been given to treating girls as victims of commercial sexual exploitation. The Trafficking Victims Protection Act (TVPA) defines minors as victims, not criminals, and states have started to pass safe harbor laws which provide alternatives for minors to avoid criminal prosecution. Sherman recommends decriminalization of prostitution for minors, which would significantly reduce the female delinquent population.
She also discusses the important role of gender responsive programming in serving girls despite the fact that it has never been required by federal legislation. Simply “painting it pink is not enough.” Gender responsiveness requires positive efforts to deal with the traumas that many girls have experienced, their developmental characteristics, and their circumstances to meet the goals of promoting safety, healthy relationships and better assessing the strengths and needs of girls. While gender responsive programs promise real advantages to girls, they have not been consistently pursued. Moreover, Sherman explains that information about child development has only recently been integrated into juvenile justice theory, stemming primarily from Supreme Court decisions regarding the death penalty and Life Without Parole (LWOP) for youth less than 18 years old. In 2004, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) recognized that more attention was necessary to provide appropriate services for girls and established a Girls Study Group, and more recently a National Girls Initiative.
Professor Sherman is concerned that implicit bias hinders fairness for girls, since they have typically been treated as an afterthought in juvenile justice policy, where gender neutrality may actually mask gender disparity. She also refers to the intersectionality literature, which reminds us of the intersection of race and gender in decision-making at each point in the juvenile justice system that results in girls of color being detained for minor conduct that would not result in detention for boys or white girls. In fact, one study reported black girls were 12% of the population, but 74% of girls’ detentions. More generally, Sherman suggests that data is not consistently being used to consider disparate impact concerning juvenile girls when compared to boys. The data that does exist concerning girls reveals that 90% of detained girls were not confined for new crimes, but for probation violations, and that a majority of girls were serving probation for misdemeanors or status offenses. This bespeaks a system that is neither serving girls nor the public. In response to this information, one jurisdiction eliminated probation for status offenders and reduced probation for misdemeanants, which drastically cut secure detention for girls. Sherman suggests that data should be collected that identifies gender, racial and ethnic information to better evaluate the fairness of the juvenile justice system. However, progress is slow and the Girls Study Group found that only 11 of an available 35 risk instruments for evaluating girls warranted a “favorable” rating in considering gender responsiveness. Moreover, Sherman critiques a case which rejected New York’s attempt to treat gender as a positive factor because girls have lower recidivism than boys. It has always struck me as disingenuous to ignore that so-called gender neutral juvenile detention and adult incarceration policies are based on a male model, and then complain when female oriented practices and programs are suggested that they are stereotypical or violate equal protection.
The final section of the article cautions that a requirement that programs must be vetted to demonstrate that they satisfy Evidence Based Practice (EBP) can stifle the creation of innovative gender responsive and culturally sensitive programs, since the criteria for assessing the validity of evidence based programs may be overly rigid or unrealistic and grants for small programs do not include money for contemporary evaluation. EBP originated in the medical field, spread like wildfire to other disciplines and is now entrenched in criminal justice analysis, where it requires empirical research supporting positive outcomes for programs and practices. While the goal of EBP is admirable, because it makes no sense to keep recycling programs that do not work, its varying definitions and retrospective application raise a number of issues about whether EBP will cause the baby to be thrown out with the bath water. Her critique of EBP as a means of rejecting girls’ programming should resonate throughout the entire correctional field, and has particular relevance to gender responsive programming of adult as well as juvenile females. For example, most mother-child programs are quite small and experimental. If states won’t fund new programs because they are not evidence based, we will be condemned to refining programs that have not been designed for underserved small groups whether male or female. One size does not fit all in creating effective programs and practices for offenders, and it is an added bonus that Justice for Girls has broader application to adults.
Oct 15, 2012 Kimberly Ferzan
I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida. One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere. Reading Victor Tadros’ The Ends of Harm made me feel like that kid again. Here are three reasons why.
First of all, the thesis upends much of our thinking about the justification for punishment. Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish. (There is, by the way, no definition of retributivism that is not somewhat contentious these days.) He then turns to an unusual defense of general deterrence. He believes that the justification for the criminal law should be that it prevents harm. However, he also takes seriously the deontological constraint that we cannot use people as “mere means.” This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons. If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done. Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes. The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence.
The duty view goes something like this. Kim decides that she wants to kill Victor so she rolls a boulder down a hill at him. Because she did something she should not have done, she now has a duty to stop the boulder, a duty that might include throwing herself in the boulder’s path. And others may force Kim to do her duty by pushing her in front of the boulder. Finally, if the boulder hits Victor and breaks two of his legs, Kim has a duty to rectify the harm, and says Tadros, this duty is not just the amount necessary to compensate for the harm caused, but rather the duty is as large in scope as the duty Kim would have had to suffer harm to prevent the harm to Victor in the first place. With this basic structure in place, Tadros makes further moves to explain why Kim and Kelsy might exchange duties owed to Victor and Vera, why the rectificatory duty should be understood as a duty of protection, and why the state is best situated to be in the midst of this duty of protection swap that now becomes a deterrent-based criminal system. I have my doubts about whether the Tadros’ attack on retributivism is fatal and about whether his duty view is successful, but the originality of this work bears a close read for anyone interested in criminal law theory, irrespective of whether you find the central thesis persuasive.
Second, this book has an abundance of arguments. No review, nor any combination of reviews, will do justice to the dizzying number of arguments that this book contains. Retributivism, self-defense, duties, the means principle, and the role of the state may be the headliners, but there are many, many supporting arguments in this book. For example, in the midst of a discussion about self-defense and the role of causation, Tadros finds it necessary to detour into the relationship between corrective and distributive justice, concluding that our duty to compensate for harms we cause is greater than our duty to rescue (or otherwise redistribute our resources). Tadros concludes that “causation is morally basic” (p. 186), and with this conclusion in hand, he returns to his analysis of how much we may harm individuals to avert harms that they will otherwise cause. Tadros has never met an issue he did not address head on. This is highly commendable, as he doesn’t shirk from difficult side issues, but it means that the reader is going to need to be on her game at all times to be able to work through the intricacies.
Third, this book is playful. It may not have lions, and tigers, and bears (oh my!), but it is full of boulders, and sharks, and claw hammers, and bears (oh my!). These hypotheticals are all deployed for highly nuanced theoretical moves; they have real work to do. Tadros defends his methodology early on, maintaining that such hypotheticals allow him to weed out other distractions. Nevertheless, there will definitely be those readers who find that Tadros’ imaginative hypotheticals are too imaginative and too hypothetical, but there is a pure joy to the argument that comes through loud and clear.
But for all that Tadros’ book presents unexpected arguments and intricate obstacles, in closing I should note that there is one important way in which this book bears no resemblance to a ride at Disney World. Some potential readers may eschew this book because it is too philosophical, too hypothetical driven, too intuition reliant, and in many ways, too unworldly. But make no mistake about it, Tadros did not write this book to design a ride at an amusement park. As he revealed in personal conversations, Tadros started this book as a book on retributivism, and when he began writing, he visited a prison. And, seeing that stark, desolate, and sobering institution, Tadros sought to write a book that could justify to the incarcerated the suffering we impose on them. Tadros has put his agile, analytical mind to work to solve a problem that should be of central concern to all of us. And in that spirit, his work should be read and celebrated.
