The Journal of Things We Like (Lots)
Select Page

Arrest, Guilt, and the Difference Between the Two

Anna Roberts, Arrests as Guilt, __ Ala L. Rev. __ (forthcoming 2018), available at SSRN.

We live in a world in which the most detailed information is used to identify and make judgments about us. Facebook wants to know whether you like grass, or a certain kind of wrestling. Google may sell advertisements based on searches for “chest pain.” But in the criminal justice world, we can be sloppy, and dangerously so. As Anna Roberts explains in her forthcoming article, Arrests as Guilt, there is a marked tendency to interpret the eleven million arrests made every year as findings of guilt. That is, we see that someone is arrested, and we conclude that the person is guilty of a crime. That assumption, made too often by journalists, academics, and the public, creates a host of problems.

Most of us can readily recall examples when media outlets appear to equate arrests with guilt. “Perp walks”—deliberately stigmatizing public displays of an arrested person—are common for notorious criminal cases. (Journalists paid considerable attention to the books carried by disgraced movie producer Harvey Weinstein when he recently surrendered at New York Police headquarters, for instance.) But more serious treatments of arrests suffer from the same problem too.

Studies on recidivism, for instance, must rely on some sort of proxy to assess reoffending. The use of arrest (and re-arrest) can be especially problematic. Arrests are not, of course, determinations of factual guilt. Nor are they findings of legal guilt. And arrest numbers alone do not tell the entire picture of criminality. Not only will a substantial portion of arrestees see their charges dismissed, but arrest data also fails to account for those involved in criminal activity who have been missed, ignored, or de-prioritized by the police. Add to this too the independent incentives of line officers who are influenced by factors that may have little to do with crime, such as the availability of overtime pay.

The costs, as Roberts points out, of conflating arrest with guilt are even more concrete for arrestees. Both the private and public sectors pile on punishments well before conviction. An arrest becomes part of a permanent record accessible to many. The mug shot accompanying that arrest might be posted on private websites demanding fees for picture removals. Those demands are compelling because arrests alone can typically lead to refusals of employment, workplace disciplinary measures, and terminations.

Why do we tolerate a system in which arrests alone can lead to loss of your savings through civil forfeiture proceedings, prevent you from receiving public benefits, cause you to lose custody of your children, and expose you to deportation? The fusion of arrest and guilt exists, Roberts argues, because it aligns with widely held assumptions that meet little resistance. No one speaks up for what many people view as a technical presumption of innocence.

In Arrests as Guilt, Roberts concludes with a perceptive insight. The use of arrest as a proxy for guilt may explain the puzzle of why urgently needed reforms throughout the criminal justice system have been slow to succeed. If guilt—factual or legal—is demonstrated by arrest alone, there is little incentive to fund public defense, reform prosecutorial overreach, and curb police discretion. If “they’re all guilty,” robust debate to strengthen the rights of the accused wanes. And in her thoughtful and original Arrests as Guilt, Anna Roberts explains the enormous social costs of this assumption.

Cite as: Elizabeth Joh, Arrest, Guilt, and the Difference Between the Two, JOTWELL (June 18, 2018) (reviewing Anna Roberts, Arrests as Guilt, __ Ala L. Rev. __ (forthcoming 2018), available at SSRN),

How and Why is the American Punishment System “Exceptional”?

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, particularly with respect to non-prison sanctions; whether veterans of the field or newcomers to it, readers should find this collection of the area’s leading scholars extremely useful. As the primary Reporter for the recently complete revisions to the Model Penal Code’s sentencing provisions and director of the Robina Institute of Criminal Law and Criminal Justice at Minnesota Law School, editor Kevin Reitz is ideally situated to bring this impressive compendium of material together.

In the opening chapter, Reitz lays out the reason for the book, describing the well-known American mass punishment phenomenon in ways that present the problem in a new light. For instance, he notes that the U.S. would have to release 1.8 million inmates simply to achieve the same imprisonment rate as England and Wales, western Europe’s leader in per capita imprisonment. Whether the focus is long-term confinement, the use of probation and parole, or the imposition of collateral consequences, Reitz notes, we “beat” all western European countries hands-down.

Perhaps the most eye-opening part of the book are the three chapters discussing the latter aspects of the American-European comparison. Edward Rhine and Faye Taxman document that the U.S. probation population is seven times that of Europe, making clear that Europe does not substitute probation for prison but is much more parsimonious than the U.S. with respect to both types of intervention. The authors also point out that, compared to Europe, the U.S. approach to probation tends to be more surveillance- and risk management-oriented, as well as longer, more restrictive, and more prolix in its conditions. Dirk van Zyl Smit and Alexandro Corda find the same to be true of parole, and further note that while in Europe parole is used as a mechanism for early release, in many American states it is now simply a means of supervising offenders after they have served their judicially-mandated prison time. Finally, Nora Demleitner describes the significant contrast between our willingness to recognize literally hundreds of collateral consequences to a conviction (ranging from loss of the right to vote to disqualification for welfare), and the many European regimes that view such consequences as unjustified punishment and degrading to the dignity of the offender.

Two other chapters in the book also focus primarily on the question of how, rather than why, the U.S. is different. David Garland examines the most glaring difference:  the U.S. has the death penalty, while Europe and most of the rest of the West does not. But he also reminds us that an increasing number of American states do not permit death sentences, and that Europe itself countenanced capital punishment in the not too-distant past. He concludes that the U.S. is an “anomaly” but not an “exception” to the general western trend toward abolition of the ultimate sanction. Similarly, Frank Zimring’s chapter notes that, even with respect to punishment more generally, some states’ incarceration practices are closer to those in Europe than to the average American state. But neither author denies the relative punitiveness of U.S. criminal justice overall.

The other chapters in the book focus on why that is the case. Some identify aspects of the criminal justice system itself as the cause of America’s high imprisonment rates. A primary culprit in Reitz’ eyes, for instance, is the risk averse attitudes of U.S. parole boards, institutions that still reign in a number of states. Cheryl Webster and Anthony Doob suggest that another culprit is American “optimism” about penal policies; comparing the U.S. to Canada rather than Europe, they argue that one reason imprisonment rates have stayed relatively stable in Canada is that the polity in that country is much less likely to attribute efficacy to either prison or rehabilitation as a crime prevention strategy.

Other authors look beyond the criminal justice system for causes. In their chapter, Nicola Lacey and David Soskice elaborate on a diagnosis that Lacey has advanced in other work: they argue that America’s massive and racially-disproportionate punishment system is largely the result of the U.S.’s unique aggressively decentralized decision-making infrastructure, which is more likely to create polarizing dynamics than Europe’s nationally-oriented politics. Tapio Lappi-Seppala takes a broad scope as well, attempting to test multiple hypotheses about the American punishment rate through statistical comparisons between a number of countries as well as the separate American states. He examines the effects of crime (homicide rates and general crime rates), demographics (racial makeup, geography, and population homogeneity), politics (social welfare policies, trust in government, and election of judges), and a number of other variables, and finds that while some combinations of these factors explain upwards of 60% of the variance between countries or states, identifying any particular complex of causes for our punitive practices is extremely difficult.

Many of the authors zero in on whether there is something about the nature of crime in the United States that provides insight into its punitiveness. Reitz asserts that while the U.S. does not have more “general crime” than other Western societies, it has more serious crime—which Reitz defines as homicides, near-homicides, and serious woundings—than any of them, and suggests that this difference is one reason for our heightened imprisonment rate. That view is echoed by Zelia Gallo, Lacey and Soskice, who provide solid data indicating that, while homicide rates in the U.S. may not differ that much from homicide rates in some countries, the risk of victimization by some sort of violent crime is much higher in the U.S., so much so that “one might reasonably suggest that violence represents a qualitatively as well as a quantitatively different social phenomenon.” (P. 354.) Lisa Miller also insists that violent crime and its politicization often occur in tandem, and argues—echoing the claim made by Lacey and Soskice—that when such politicization occurs, the localized nature of American democracy creates many “veto points” that block social welfare solutions to crime.

In contrast, Lappi-Seppala’s analysis of the data leads him to conclude that, “in global comparison, the extraordinarily high U.S. incarceration rate cannot be explained by a higher victimization rate or by a higher homicide rate.” (P. 256.) Randolph Roth reaches a similar conclusion after canvassing longer-term American historical trends, among them that neither homicide rates nor imprisonment rates were very high during much of the early history of the republic, and that American authorities were relatively lenient, at least toward white offenders, until as late as the 1970s even after homicide rates rose. Neither of these authors directly contest the notion that the U.S. is saddled with more violent crime overall, however.

Although all of the authors appear to believe the United States is too punitive, none of the chapters offers in-depth prescriptions for change. But the book significantly furthers our understanding of American criminal justice exceptionalism and thus inevitably gestures toward the manifold ways something might be done about it.

Cite as: Christopher Slobogin, How and Why is the American Punishment System “Exceptional”?, JOTWELL (April 24, 2018) (reviewing Kevin Reitz, American Exceptionalism in Crime and Punishment (2018)),

Why We Punish: Lessons in Indeterminacy

Gabriel S. Mendlow, The Elusive Object of Punishment (Draft, March 11, 2018), available at SSRN.

In the adjudication of criminal law, judges tend to agree upon the elements that make up a given crime, but are less certain about exactly which element the law seeks to punish. For example, in child pornography possession statutes, it is difficult to determine the underlying transgression that is targeted by the punishment. Is it the act of possessing the images that is blameworthy or is there something else? And if so, what? Does the law actually seek to punish certain thoughts that the images engender – particularly to steer people away from thinking about children in a certain way? The closer one looks, the more one might suspect that the law is punishing thoughts about certain images. From this perspective, the crime of possession takes the shape of a thought crime more than anything else. However, this very state of mind—which might be the true object of punishment—is not even an element of the offense.

Gabriel S. Mendlow’s The Elusive Object of Punishment highlights such uncertainties in criminal law and how they might produce unfair punishment practices. As the author notes, these uncertainties “underlie an assortment of familiar disputes—over venue and vagueness and mens rea, over whether an offender’s sentence is proportionate to his offense, and over whether the offense itself is a legitimate object of punishment…Yet these disputes may hinge on deeper disagreements about the identity of the wrong a law punishes.” Through careful statutory analysis, Mendlow makes a powerful case that the object of punishment can be obscure and elusive, and that justice may suffer as a result.

Expounding on a distinction of Professor R.A. Duff, the work begins by establishing the importance of distinguishing the wrong an offender is being punished for from the conditions on which he is being punished for that wrong. In order to cast culpability on a defendant legitimately, the law must be certain about whether it is punishing the defendant for a transgression that the law may punish. But sometimes, courts are uncertain about the target of punishment – as demonstrated in hate-crime assault statutes. Wisconsin’s Supreme Court struck one statute because, in its view, the law imposed punishment for what the Court deemed the defendant’s “bigoted thought.” The U.S. Supreme Court saw the Wisconsin statute differently and focused on the assaultive nature of the offense. Furthermore, this Court reasoned that bias was simply a tack-on enhancement, not the point of blame. These, and other examples, demonstrate that failure to distinguish the wrong an offender is being punished for from the conditions on which he is being punished for that wrong leads to downstream problems, including when the criminal law oversteps its jurisdiction, punishes unfairly, and punishes when it should not.

Next, the work sets out to distinguish “conditional offence elements” from those elements considered material for purposes of casting culpability. Whereas the law may punish someone only if that person satisfies a statute’s set of elements, this notion hardly means that all elements are created equally. For example, if a sexual assault statute requires prosecution of a crime within a specified number of years, the time frame is a condition for ultimately imposing punishment. As such, the time component is immaterial when considering culpability. A clear understanding of this distinction sets the stage for examining genuine instances of punishment directed at conditional elements, or potentially more problematic, factors beyond the elements themselves.

Having outlined the moral and punitive import of material elements, the work moves on to employ the notion of “thought crime” to show how a statute can criminalize behavior outside the criminal law’s jurisdiction, in this case, by purporting to punish an act when it in fact punishes the accompanying mental state. Among other examples given is a British statute that makes it a crime to possess money with the intent to commit a terrorist act. This crime offers a vivid snapshot of how the law might target particular thinking. The object of punishment is arguably not so much the physical “possession” of money, but rather, possessing particular intentions about how to use the money. Thoughts are potentially the real transgression that the law is targeting, even though traditionally, mere thoughts could never be a basis for liability. For the reader, this example and others make clear that possessing such thoughts may not even be an essential element of the offense; however, one should not overlook the fact that thought is potentially the essential object of punishment.

Taken wholly, this work highlights a largely unexamined problem in criminal adjudication, one that invites the criminal law to overstep its boundaries and sometimes punish without justification. The work lends itself to imagining how punishment can be doled out more fairly, and most importantly, that only blameworthy behavior gets punished. In addition, this piece offers a critical reminder that policing human thought is an anathema to concepts of liberty, culpability, and ultimately, justice.

As shown throughout the work, individuals can face punishment seemingly for thinking certain thoughts, in full contravention to American political values. Yet in the world of courts, thought-deterrence can be a major impetus for punishment. While such rigid thought-patrol persists in some areas, in others, there is full license to possess. Practically anyone can possess the most debauched library of humans brutalizing other humans in unspeakable ways—from Faces of Death videos, prisoner mutilations, torture videos, police killings, to other ghoulish graphics—yet there is hardly legal prohibition. The work offers a compelling case for understanding how this situation is possible. The clear and careful analysis points out stark contradictions that offer a unique and critical contribution to legal scholarship. The practical implications for penal reform are especially noteworthy since they work to minimize needless human suffering.

Cite as: SpearIt, Why We Punish: Lessons in Indeterminacy, JOTWELL (April 2, 2018) (reviewing Gabriel S. Mendlow, The Elusive Object of Punishment (Draft, March 11, 2018), available at SSRN),

Addressing Legal Estrangement

Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017).

The topic of police reform has received a great deal of attention in academic and policy circles in recent years. One of the most influential frames for the police reform conversation has been procedural justice. Procedural justice, closely associated with the work of Tom Tyler, has replaced a number of other theories of police reform that have fallen, at least temporarily, into the dustbin of history. The procedural justice reform frame focuses on increasing police legitimacy and restoring community trust in the police to improve legal compliance. To achieve that goal, police officers are encouraged to respect human dignity and equality by treating all people with respect, by listening as people express their concerns and feelings in the course of their interactions with police, and by policing in a neutral, nondiscriminatory way. This procedural justice approach stood at the center of the May 2015 Final Report of the White House Task Force on 21st Century Policing and police departments across the country have adopted procedural justice approaches and practices over the past few years.

Enter Monica Bell. Drawing on narrative data that she, along with a research team, collected in Baltimore, Maryland, in the wake of the police killing of Freddie Gray, Bell explains what is missing from the procedural justice frame. She argues that procedural justice centers concerns about compliance with the law, and consequently, focuses on increasing legitimacy in individual interactions to improve compliance. Or, as she puts it “in the version of legitimacy theory that policymakers have adopted most completely, trust between police and communities is understood as a problem of illegitimacy: the key concern is the degree to which people will choose to obey the law and its enforcers.” (P. 2072.) The intellectual origin of this model is Weberian analysis of the subjective process of legitimation, achieved through procedure and consent. The core analytical question at issue in this model is how to legitimate law enforcement in the eyes of the individual, thereby achieving greater compliance with the law. Procedural justice is the answer to this question.

While she does not discard the importance of improving procedural justice in individual interactions, Bell argues that this is flatly insufficient. Importantly, she notes that many members of communities who distrust police are actually complying with the law and have respect for the law and for many (perhaps even most) individual police officers. Yet they still feel alienated from the police and unprotected by them. Bell offers detailed accounts of a number of in-depth interviews from her study to illustrate the point. Her interview participants are young African American residents of Baltimore. Some have a criminal record, many do not. Some have had direct negative encounters with law enforcement, but many have had only positive or no personal interactions. Yet all of them have witnessed or heard about negative police-civilian interactions in their communities, all of them are distrustful of the police and none of them feel that they are or will be protected by the police. Bell’s in-depth presentation of the words of her respondents helps to bring new voices into the police reform discussion. And their words reveal that widespread community distrust is not always a problem of legitimacy as often understood because noncompliance is not really what is at issue here. Individuals are striving to comply with the law and cede authority to law enforcement. But they do not trust law enforcement, nor do they feel that they are the beneficiaries of law enforcement.

Instead of focusing on the causes of and solutions for police illegitimacy in hopes of generating compliance, Bell therefore proposes focusing on the causes of and solutions for community “legal estrangement.” The theoretical origin of “legal estrangement” is not Weber’s focus on process—and consent-based legitimacy, but Emile Durkheim’s notion that, as Bell puts it, “the purpose of the criminal justice system is to restore those who break the law, with the ultimate goal of increasing social cohesion by reinforcing moral and legal norms.” (P. 2083.) Rather than focusing on the individual, this analysis focuses on communities or collectivities, with attention to cultural perceptions and views. The core analytical question is how to solve the problems of anomie or collective alienation and to generate social inclusion. Procedural and structural inclusion is Bell’s answer to that question.

Bell’s point is not that procedural injustice does not matter. Obviously it does, and procedural injustice is one root cause of legal estrangement. But Bell posits that vicarious marginization and structural exclusion operate with procedural injustice to produce legal estrangement. (P. 2100.) And she suggests that poor, marginalized communities of color, particularly African American communities, are unlikely to change their views of law enforcement, nor will they have material reason to do so, in the absence of efforts to address all of these things.

In her discussion of vicarious marginalization, Bell notes the ways that cumulative, collective experiences of substantive injustice and procedural injustice exert a social power independent of the noncompliance that might be generated by an individual, procedurally unjust encounter. Fixing the procedures of individual encounters will not be enough to reshape collective wisdoms. Reform efforts have to take seriously and seek to address the collective memories of police injustice because those memories are an important element in the identity construction of communities. (P. 2106.)

Bell also unpacks structural exclusion, naming the ways that “policies that are facially race- and class-neutral distribute policing resources so that African Americans and residents of disadvantaged neighborhoods tend to receive lower-quality policing than whites and residents of other neighborhoods.” (P. 2114.) As Bell notes, it is important to understand not just who is losing out under the current system, but also who is benefiting. Why do more affluent communities get the most experienced police officers? Why are police response times so much worse in poor neighborhoods? Bell’s analysis invites the reader to think creatively about how entrenched residential segregation, housing (and eviction) policies, local zoning, the size and political control of police forces and other legal choices work together to create a system where some communities are structurally excluded from access to good policing.

Unsurprisingly, Bell does not have a silver bullet solution for the complex bundle of issues that she lays bare. Indeed, Bell counsels against silver bullet solutions. At the same time, she rightly cautions that this does not mean that we should default to hand-wringing. She outlines a series of tools that could be used to tackle legal estrangement. She urges wise use of the federal government’s power under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, the reexamination of compensation schemes for police officers, and the reorganization of smaller police departments (Bell favors consolation). She also calls for “raising the stakes” of Fourth Amendment jurisprudence, by which she seems to mean that judges should take greater account of the true social context in which their decisions most commonly operate and should calibrate rights and remedies appropriately. She notes that state courts have led and can continue to lead the way here. She recommends “democratizing the police,” calling for “more deliberative participation in policing than most proposals demand.” Just calling for more democratic governance of the police will not do the trick if poor and marginalized communities are not participating in the democratic process, so these communities must be engaged. Democratic accountability also requires transparently accessible data about policing, since democratic decisions shouldn’t be made in the dark. Bell also suggests that truth and reconciliation efforts can be part of this democratic process. Finally, she urges “shrinking the footprint of armed bureaucrats,” that is, getting the police out of social service provision and other general governance functions that are outside of the ambit of policing.

Bell is quite forthright in acknowledging the difficulties as well as the weaknesses and insufficiencies of these remedies, both individually and collectively. Indeed, the first three suggestions and the last one do not necessarily move us very far beyond the place where the procedural justice reform efforts have already pointed. Well we know, too, that reform-oriented changes in Fourth Amendment jurisprudence can generate unanticipated negative consequences. And the goal of democratizing the police will require more fleshing out, more concrete suggestions for implementation and a whole lot of community mobilization. But Bell offers all of her suggestions as a helpful starting point for a broader and deeper conversation about police reform. It seems like a discussion worth having.

Cite as: Jennifer Chacón, Addressing Legal Estrangement, JOTWELL (March 2, 2018) (reviewing Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017)),

Rethinking Capital Felony Murder

Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017).

Guyora Binder, Brenner Fissell, and Robert Weisberg combine to address a significant flaw in the application of Supreme Court’s Eighth Amendment jurisprudence—the application of the Eighth Amendment to unintentional felony murder—in their recent Notre Dame Law Review article. Specifically, the authors argue that lower courts have misread the applicable Supreme Court precedents, Edmund v. Florida and Tison v. Arizona, to reach the unfortunate conclusion that an offender committing an unintentional felony murder is eligible for capital punishment.

Both cases address the application of the Eighth Amendment to felony murder. Enmund held that Florida’s imposition of the death penalty for felony murder violated the Eighth Amendment because the state failed to prove that Enmund killed or attempted to kill. Tison, by contrast, narrowed the holding of Enmund by finding that felony murder could serve as the basis for a death sentence in certain cases and not violate the Eighth Amendment. Particularly, the Tison court held that individuals who are major participants in a crime and demonstrate reckless indifference could receive the death penalty even though they did not kill or attempt to kill the victim.

The core distinction that the authors draw rests on what they deem the unnecessarily mechanical reading that lower courts give to these cases. The authors argue that the lower courts that have applied these precedents have erred by ignoring the culpability requirement imbedded in the decisions, and by allowing death sentences for felony murders where the defendant exhibited no culpability for the death. In this vein, the authors emphasize the failure of courts to account for the long-held animating principle of the Eighth Amendment—that sentences are proportionate in satisfying the purposes of retribution and/or deterrence.

Rather than read the precedents as isolated decisions, the authors make the compelling case that courts ought to read the cases in the context of this animating principle, and require proof of some culpability to sentence a felony murderer to death. They propose recklessness as the appropriate mens rea for achieving the level of proportionality required by the Eighth Amendment.

Thus, the authors read Enmund and Tison together as distinguishing ordinary felony murder, which requires no intent to kill, from felony murder accompanied by a mens rea of recklessness toward the life of the victim. A proper reading of the cases, according to the authors, would mean that cases in the former category are ineligible for death under the Eighth Amendment, while death sentences in cases in the latter category would be constitutional.

Perhaps, though, the authors do not go far enough. In non-felony murder cases, a mens rea of recklessness seldom if ever should warrant a death sentence. Felony murder should be no different.

Without overruling Tison, though, it seems impossible to rule out the death penalty for felony murder altogether. But one can read Enmund as the bright-line rule, with Tison as the extreme, distinguishable exception. Under such an approach, felony murder for a death sentence would violate the Eighth Amendment even in cases of reckless murder, absent extraordinary facts.

The unusual factual posture of Tison lends credence to such a reading. Gary Tison cruelly and unnecessarily murdered an altruistic family, including two children under the age of three. Tison, though, died during the ensuing manhunt, and the court was thus unable to give him the death penalty. Tison’s two sons received the death penalty for felony murder, despite their lack of participation in the actual killing. They had helped their father escape from jail, but were not aware that he would kill the family and were not immediately present when he did. Indeed, the Arizona Supreme Court later set aside their death sentences.

To be sure, the authors are correctly trying to move the lower courts back in the direction of Enmund, and away from Tison, by reading the cases as at least requiring reckless killing. The value of their article comes from its potential to cause lower courts to rethink their application of Enmund and Tison and choose to restrict the current trend of carte blanche use of felony murder as a basis for imposing death sentences on offenders that did not intend to or attempt to kill.

Finally, their useful article also underscores a deeper problem in both the Supreme Court and the lower courts—the failure to apply the Eighth Amendment to cases involving excessive and disproportionate punishments. The felony murder disproportionality that the authors eloquently write about—imposing the death penalty for killings with a mens rea of negligence or less—is but one of example of where the Court has failed to intervene.

Juvenile life-without-parole sentences provide another obvious example, with the United States being the only country in the world that allows such sentences. Many adult life-without-parole sentences also seem obviously excessive, as many are the product of the abolition of parole in some states and thus are essentially conversions of fifteen-year sentences to death sentences. Many mandatory sentences (whether short or long) also deserve constitutional scrutiny, both for the excessive nature of the penalty and for the denial of individualized consideration of mitigating circumstances.

Unlike with the First Amendment, Fourth Amendment, and the Fourteenth Amendment, the Court has long displayed a hesitancy to use the Eighth Amendment to restrict the power of the state governments, even when such punishments are excessive and disproportionate. Until recently, the Court’s application of the Eighth Amendment to limit non-capital punishments has been virtually non-existent. Perhaps the backlash to Furman v. Georgia explains part of the Court’s hesitancy, as well as its flawed decision to use a majoritarian evolving standard of decency to define what punishments unconstitutionally infringe on the rights of the political minority under the Eighth Amendment.

Nonetheless, the Court’s recent application of the Eighth Amendment to juvenile LWOP cases in Graham v. Florida and Miller v. Alabama holds promise. One can only hope that the authors’ work in the Notre Dame Law review will likewise spur the Court to update its Eighth Amendment jurisprudence with respect to felony murder.

Cite as: William W. Berry III, Rethinking Capital Felony Murder, JOTWELL (February 12, 2018) (reviewing Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017)),

Time to Re-think the Idea of System

Sara Mayeux, The Idea of 'The Criminal Justice System', Am. J. Crim. L. (forthcoming 2018), available at SSRN.

Do you want to reform the criminal justice system? Maybe with new evidence-based practices? Or maybe you doubt the word ‘justice’ is appropriate and you would like to shrink the criminal system more generally? Good luck, because, to paraphrase an old anarchist poster from London that used to hang on my wall in high school, “whoever you voted for, the system got in.” In short, almost all of us return repetitively to the idea, the metaphor really, that the criminal process is or at least can aspire to be a system. It may be time, in the aftermath of mass incarceration, to not only reform, and shrink American crime control institutions (or the carceral state if you prefer), but to (use a horrible malapropism, forgive me George Orwell) de-systematize it.

Mayeux’s enlightening essay provides us a genealogy of the rise of system thinking over criminal justice thinking. The idea that all things natural and artificial can usefully be thought of as systems (and creation a complete system) goes back to the Enlightenment at least. Modern sociology, in its mid-century rise to national prominence, promoted the idea of a social system, inside of which functioned numerous sub-systems. After the war systems theory took off in the operations research wing of engineering where, spurred by the tremendous numbers of bombs dropped and planes built and destroyed during World War II (Mayeux skips these details), the idea of breaking down processes into their essential elements and studying their flow and interaction took hold. This thinking seeded in business schools in the 1950s and came back to government with Robert MacNamara in the 1960s.

Mayeux’s account rightly centers on the important 1967 report of the President’s Commission on Law Enforcement and the Administration of Justice, titled The Challenge of Crime in a Free Society. The report helped lay the groundwork for a massive build up in policing and other parts of local administration of justice, which later helped provide the material for mass incarceration. At the same time, it brought together a generation of young criminal justice researchers eager to show that social science and progressive reforms of law enforcement could take a dent out of the growing crime political problem of urban crime. Among these none were more committed to neutral scientific approaches then Alfred Blumstein, the distinguished former Dean of Carnegie Mellon’s school of public policy and the winner of criminology’s equivalent of the Nobel prize in 2007 (the Stockholm prize).

It was Blumstein, trained in operations research not traditional sociology or criminology, who fashioned the illustrative flow charts of different parts of the criminal process that ran through the report and came together in the complex funnel of crime that Mayeux correctly spots as the paradigm-shifting contribution of that report (one entire unintended by its authors, including Blumstein). That funnel showed a wide band of criminal arrests entering the pipe of criminal processing, itself only a part of the “dark figure” of unreported and undiscovered crime, and then many of those arrests flowing out through various steps in the system including bail, pretrial motions, and acquittal. Only a portion of the whole entered prison or probation. At a time of perceived rising crime (and as Elizabeth Hinton suggests in her book, From the War on Poverty to the War on Crime, the new efforts to bolster the flow of information in the “system” may have created more reported crime), the imperative of closing those leaks (otherwise known as constitutional rights) seemed self-evident and imperative. One of the most important audiences for this funnel chart and the system model behind it, according to Mayeux, was the federal judiciary, who increasingly felt the burden of deciding Fourth, Fifth, and Sixth Amendment decisions that might widen the leaks if defendants were vindicated.

One of the implicit assumptions behind systems theory in criminal justice was the idea of “homeostasis”, that systems seek and maintain equilibrium. Recognition of the out-of-control growth of the carceral state in the US has, in Mayeux’s view, intellectually undercut this approach. Perhaps. Supporters of systems thinking might conclude however that instead we have reached a new equilibrium and that the rapid growth of imprisonment in the 1980s and 1990s has been followed by relative stability today with little sign of a return to the previous level or of further growth (Blumstein’s 1973 paper with Jacqueline Cohen vindicated at last!).

Mayeux is on stronger ground, however, in suggesting that the features of systems thinking which have enabled quantification and rationalization are the dropping out of local geographic and historical context and contingency. While systems thinking isn’t blind to change, it ignores the institutional legacies of the past on the inputs and outputs of the present. More importantly, in its commitment to value neutrality, systems thinking has allowed a narrow commitment to public safety through incarceration to come to the fore.

There is, as Mayeux recognizes, a close relationship between the rise of the criminal justice system, and the influence of the federal government in local criminal justice. The federal government has been the great promoter of the system as the cure for criminal justice ailments (usually perceived through federal initiatives like the wars on alcohol and drugs). One of the reasons that liberals, including those on the staff of the President’s Commission, embraced systems thinking was the promise to break up parochial and racist local values and knowledge. The problem was that the rapid shift toward arrests and incarceration required that parochial and racist local knowledge be repackaged as aggressive crime control. Yet today, unlike in the 1960s, local urban politics looks like a productive place to rethink the purposes and values of criminal justice. Perhaps less system goes along with less federal direction, although a more robust enforcement of constitutional rights might be quite consistent with, indeed essential for, that local politics to take shape.

However you name it, Mayeux’s essay is an essential read for criminal justice scholars and reformers. As she notes it is the non-social scientist, the casual user of the system metaphor who is most likely to allow its presumptions to penetrate into their imagination of the present and the future. Rather than promote further the idea of the system, we can see it as a historical project with some material success in reshaping criminal justice institutions. We can then open our research to the way criminal justice institutions interact with other organizations and interests beyond “the system.”

Cite as: Jonathan Simon, Time to Re-think the Idea of System, JOTWELL (January 29, 2018) (reviewing Sara Mayeux, The Idea of 'The Criminal Justice System', Am. J. Crim. L. (forthcoming 2018), available at SSRN),

Hey Lexis, Hey Westlaw: Please Include All Appellate Decisions in Your Databases!

Michael Kagan, Rebecca D. Gill & Fatma E. Marouf, Invisible Adjudication in the U.S. Courts of Appeals, 106 Georgetown L. J. (forthcoming, 2017).

Professors Kagan, Gill and Marouf have identified a remarkable gap in the Westlaw and Lexis databases. While those databases include all decisions designated as “published” and some other less elaborate, less detailed, decisions designated as “unpublished,” many decisions are not included at all.

The authors discovered this by studying immigration decisions on PACER. The cases involved review by the U.S. Courts of Appeals of administrative decisions by the Board of Immigration Appeals in the Department of Justice. In some cases, no appellate rulings were available, because they were sealed, for example, or because the case was resolved by a short docket entry. But even where merits decisions were issued and publicly available, many did not appear in the searchable databases, although Lexis had far more than Westlaw. Of course, in such cases the decisions are available on PACER and can be found by docket number on the Lexis and Westlaw mirrors of PACER. But the whole point of a searchable database is to find cases one does not already know about.

As good scholarship often does, this discovery raises a number of questions. The first is whether there are other categories of cases that are also selectively reported. I regularly teach a federal criminal appellate clinic and I have been surprised that dispositions that cite cases and vacate judgments do not find their way into the databases.

A second question is why Lexis and Westlaw would choose to deprive researchers of useful information. This is a particular problem because one party, the Department of Justice, has ready access to all the decisions in their own files. Accordingly, without complete coverage, attorneys representing immigrants (or criminal defendants) will be able to see only a partial picture of what the courts are doing.

The paper nicely explains the constitutional controversy surrounding published and unpublished opinions, in particular whether it is permissible for an Article III appellate court to issue non-precedential decisions. But even if the invisible adjudications are legitimately non-precedential, they remain significant. Lawyers want to know what the judges they appear before have actually done in similar cases; even if those judges are not required to apply the same law in the future, the odds are that they will. Similarly, scholars trying to understand the courts’ views on particular legal problems will often find a non-binding opinion just as illuminating as a precedential one.

Unlike many problems addressed by scholars, this one is easy to fix. Lexis and Westlaw should be non-selective in incorporating dispositions by the U.S. Courts of Appeals into their databases. An affirmance, reversal, vacation, or remand, however designated, whether stipulated, procedural, on the merits, or otherwise, should be in the database. Odd, quirky dispositions will be useful for lawyers in the future with odd, quirky cases. Existing search functions allow limiting of results to reported cases; perhaps it could be tweaked further to account for this new category of decision.

Cite as: Gabriel "Jack" Chin, Hey Lexis, Hey Westlaw: Please Include All Appellate Decisions in Your Databases!, JOTWELL (November 20, 2017) (reviewing Michael Kagan, Rebecca D. Gill & Fatma E. Marouf, Invisible Adjudication in the U.S. Courts of Appeals, 106 Georgetown L. J. (forthcoming, 2017)),

Feminist Judging

Feminist Judgments: Rewritten Opinions of the United States Supreme Court, (Kathryn M. Stanchi, Linda L. Berger, Bridget J. Crawford eds. 2016).

In March of 2016, Cambridge University Press published the American volume of the Feminist Judgments (FJ) series. This tome was preceded by the Canadian, Australian, and Northern Irish editions which rewrote High Court decisions and opinions from the International Court of Human Rights. The American edition follows the same tradition as previous volumes, articulating legal precepts and theories drawing from feminist jurisprudence as well as critical race theory. The subject areas covered include pay equity, marriage, work, occupational options and limits, benefits, reproductive justice and sexuality. What ties these areas together is the issue of gender [in]equality as constitutive of both law and culture.

This book is a fascinating read, because contributors drew from practice as well as theory, creating a philosophy of law which not only incorporates social justice principles but the effect of law on the lives of people. Authors refrained from “theory-speak,” and the plethora of footnotes that plague student edited law reviews. Thus, writing flows, it is crisp and it is passionate; passionate because the subjects discussed touch at the center of what it means to be human and female.

As Stanchi, Berger and Crawford, editors of this edition, point out, the rewritten decisions and accompanying commentaries, could have changed the direction of law in a way that “increase[d] the judicial capacity for social justice.” Indeed, diversity of thought and experience can produce juridical opinions which reflect experiences shaped by myriad identities, including gender and sex. The editors and authors put to rest the tired and false notion that judges, including those who sit on the Supreme Court, judge from behind a shield of neutrality and detached objectivity; rather articulation and protection of rights are shaped by “assumptions and expectations of norms relating to gender, sex, race, and class.”

In the rewritten opinion of Lawrence v. Texas, Ruthann Robson apologizes for the Court’s decision in Bowers. It is a stunning reaffirmation of how law not only shapes and reifies culture, but also it has a very distinct impact on the lives of Americans. She reminds her colleagues on the Court, and derivatively, the lower courts and the profession, how legal opinions shape social perceptions and harm or enhance the quality of life of discrete groups of individuals.

If one reads Bowers and then Lawrence, one has no idea of Michael Hardwick’s life post Bowers, or how the Court’s opinion hardened not only attitudes about homosexuals but criminalization of homosexual intimacy and of the LGBT community. Following Bowers, lesbians lost custody of their children, an assistant attorney general in Bower’s office was fired, and the primacy of religious belief was a sword severing LGBT persons from fundamental rights of liberty and equality. Between Bowers and Lawrence the pain associated with the former ruling was at once palpable and deeply felt by one segment of American society; moreover, the effect of Bowers was endorsement of the sexual “otherness” of LGBT community in both law and culture.

In identifying and naming Bowers‘s emotional, physical and legal damage to gays, lesbians and bisexuals, Robson memorializes how the legal canon collaborates with establishing otherness whether based on race, sex or gender. Robson’s opinion in Lawrence is the apology African Americans, women and Japanese Americans deserved following Dred Scott, Muller v Oregon and Korematsu.

If the American iteration of FJ follows the acceptance of the European and Candadian volumes, we may see language from the rewritten cases in subsequent decisions, statutory enactments and policy. Since the American FJ not only treats feminist jurisprudence as foundational, but also used human rights law, someday we may actually read in law and policy that, “Women and LGBT rights are Human rights and Human Rights are Women’s and LGBTQ rights.”

Feminist Judgements provides grist for the equality mill. Both lawyers and those who are dancing with feminism should have it on their bookshelf.

A girl can dream.

Editor’s note: Professor Miccio contributed a chapter to Feminist Judging, but was involved with neither the selection or editing of the chapters she discusses here.

Cite as: Kris Miccio, Feminist Judging, JOTWELL (October 27, 2017) (reviewing Feminist Judgments: Rewritten Opinions of the United States Supreme Court, (Kathryn M. Stanchi, Linda L. Berger, Bridget J. Crawford eds. 2016)),

It Gets Worse Before It Gets Better: Victims’ Duties to Resist Injustice 

Ashwini Vasanthakumar, Epistemic Privilege and Victims’ Duties to Resist their Oppression, J. Applied Phil. (forthcoming).

Victims have recently assumed a privileged place within criminal justice policy. The criminal justice system has sought to promote victims’ rights, to provide the victims of crime meaningful opportunities to participate in the prosecution of cases. But in promoting victims’ rights, the criminal justice system sometimes loses track of victim’s duties. In seeking to shield victims from further physical or psychological harm from the criminal injuries visited upon them, we sometimes fail to press victims to step forward to resist those who would wrong them. That, at any rate, is the important argument advanced by Ashwini Vasanthakumar. Vasanthakumar builds upon other accounts of victim’s duties to argue that victims have a duty to resist their abusers. More powerfully, that duty to resist becomes, on occasion, a duty to assist other victims.

It’s worth putting Vasanthakumar in conversation with another scholar of victimhood—Michelle Dempsey—to elucidate the novelty of her position. Victims’ duties are not simply the mirror image of their rights. Victims may have a right to participate in prosecuting some criminal wrongdoer. But the duty to participate is one shared by all witnesses to injustice, whether victims or mere bystanders. (So argues Dempsey in her book Prosecuting Domestic Violence: A Philosophical Argument.) Vasanthakumar recognizes that one sort of victim duty is a dignity based one: by resisting her abuser, a victim restores her sense of self-worth. This type of resistance does belong to the victim in her role as victim: as Dempsey argues, “[b]y standing up for herself against…violence and abuse, [a victim] realizes a value which no one else can realize: a value grounded in self-respect, courage, selfmastery, refusal to be dominated, etc.” Other members of the community could choose to identify with the victim in accusing the abuser. But they cannot restore the victim’s dignity on her behalf. She must assert herself—even if it is with the community’s help—to realize the dignitarian values that come with the duty to resist.

Vasanthakumar focuses on this communal move. But for Vasanthakumar, the relevant community is not all of us—the community in general—but rather a specific community, the community of fellow victims. She argues from the general duty to assist those who are at risk or in danger, to suggest that certain types of wrongdoing place victims in a unique position. Some wrongs are particularly capable of repetition: institutional wrongs, Vasanthakumar argues, have this function. Institutional injustice is typically capable of repetition and directed against a group. If there is an institutional culture that tolerates or encourages institutional agents in doing wrong—institutionalized sexism or racism or violence—then there will be not one victim, but many. That’s the Black Lives Matter argument (but not only their argument) about police violence against minorities. It is not one or two bad apples; it is not an isolated affair. It is a feature of police culture regularly repeated across the disparate, independent police departments across the nation.

Vasanthakumar’s account of victim’s duties is both broader and narrower than Dempsey’s. It is broader because it includes injustice outside the criminal justice context. One of Vasanthakumar’s core examples is of a corporatoin’s tolerance for sexist mansplaining in the workplace. But it is also narrower, because it is focused on repeated offenses, rather than one-off instances of wrongdoing.

The repeatable nature of institutional wrongdoing, Vasanthakumar argues, places victims in an oddly privileged position. Having experienced the wrong, they may be better placed to know that wrongdoing is afoot and to understand its psychological or physical or social consequences. That is the epistemic part of her argument. Ignorance is bliss. We may all be under a duty to help. But because victims know that a wrong has been committed when the rest of us may not, victims of wrongdoing are closer to the action and so in a better position to help others should the wrong be repeated. By virtue of this unfortunately privileged position victims are under a duty to assist others. These epistemic reasons go beyond individualized dignitary reasons for victims to resist injustice. These individualizing reasons only require victims to assert themselves; they do not require the victim to reach out to others and form associations of assertion and resistance.

Dignitary reasons are not just individualized; they can be individualizing as well. So long as victims are able to assert themselves, the dignitary reasons are satisfied. So long as we join the victim in condemning the offender, perhaps through criminal prosecution, then that may be enough to satisfy dignitarian concerns. But focusing on victims and offenders one by one does not challenge the institutionalized, systemic factors that create widespread, repeated injustices.

Vasanthakumar goes beyond the individualizing strain she detects in the dignitarian model of victimhood. Her associational, communal focus addresses a very contemporary fear some people have about political associations like Black Lives Matter, which are destabilizing of the current status quo. Vasanthakumar suggests that this is all wrong: it is not the victim-resistance move that is destabilizing; injustice is destabilizing. We have strong reasons not to tolerate injustice, reasons for ourselves and based in what we owe to others that override the reasons we may have for preserving institutional arrangements that empower ourselves at the cost of others.

These reasons are particularly pressing for victims. Where injustice is institutionalized and directed towards groups of people, then the victims of injustice have a duty to associate with each other to challenge the injustice. Instead of taking the status quo for granted, and asking how to ameliorate conditions within the usual ordering of society, Vasanthakumar explains how victims duty to resist demands that victims agitate for, and non-victims help to create, a space for challenge, uptake, and change.

In the context of Black Lives Matter, for instance, the claim is not that these activists have only a right to agitate for change. They have a duty to do so. And all of us, including the police, have knock-on duties to listen and understand these claims. If we exhibit virtues of “conscientiousness, open-mindedness, perception, honesty, transparency…and critical reflectiveness” we can engage with and verify victim’s claims about wrongdoing. Having learned that the claims are trustworthy, now we are in a position to help. And being in a position to help, Vasanthakumar argues, is often enough to put us under a duty to do so.

Cite as: Eric J. Miller, It Gets Worse Before It Gets Better: Victims’ Duties to Resist Injustice , JOTWELL (October 4, 2017) (reviewing Ashwini Vasanthakumar, Epistemic Privilege and Victims’ Duties to Resist their Oppression, J. Applied Phil. (forthcoming)),

Saving Harlem from Drugs: A Hobson’s Choice

Margareth Etienne

Margareth Etienne

Dr. Michael Javen Fortner’s book, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment, has ignited critical conversations in the academy and in public discourse. Among other things, the book describes a sort of “politics of respectability” within the black community and its impact on drug enforcement policy. The politics of respectability is a term coined twenty-five years ago by Professor Evelyn Brooks Higginbotham in Righteous Discontent to describe the social pressures by elite memb ers of the black community to ensure that other blacks were behaving respectably rather than affirming assumptions and stereotypes that the white community might have of blacks. Fortner’s book compels us to question the implications when, as is often the case in the African-American community, unelected social or religious leaders are assumed to represent the larger group. This is an important question for policy makers in the era of Black Lives Matter, a movement with a new model of diffused or unconventional leadership. Who should speak for whom? Black Silent Majority is a historical account of the role that a sub-group of African-American played in one of the most important socio-legal phenomena of the last half-century: the mass incarceration. In particular, Fortner explores how a privileged “silent majority” of black New Yorkers (preachers, politicians, businesspeople, the so-called “talented tenth,” and others) paved the way for the institution of draconian drug sentences.

To understand the ramifications of his argument, we must remember the cultural vibrancy of New York between 1920 and 1950. Harlem became a mecca of artistic, cultural and intellectual engagement during this period. This was the time of Langston Hughes, Duke Ellington, Zora Neale Hurston, and Josephine Baker. This renaissance was seeded by the great migration—the explosion of more than 6 million people to the North from the South in Harlem. Harlem – in this place and in this time – was as close to a capital of Black America as there could be.

With this in mind, contemplate this question: if this Harlem were on the brink of destruction, what measures should be taken to save its cultural, political, and intellectual fruits? This question is important because the Harlem that emerged between 1950 and 1980 was indeed on the verge of collapse. According to Fortner, much of what Harlem represented was at stake. The Depression of the 1930’s, followed by WWII and the Cold War, hit Harlem and its poor and working class folk as hard, maybe harder, than anywhere else. This Harlem was plagued by poverty, unemployment, organized crime and drugs. Fortner describes “the wreckage” of Harlem in chapter four in great detail. He depicts the struggle – moral and political – that the “Black Silent Majority” faced in watching the decline. The decline they observed was real and the desperation was palatable. Drugs and doping were viewed as the primal cause of the problem. Criminal scholars and sociologists know now the inadequacy of that assessment, with its sole focus on personal responsibility without a similarly rich account of structural problems (e.g., How did the dope get to Harlem?). But the black leaders did not seem to act with this understanding. They acted out of desperation and anger. In one chapter, Fortner movingly describes the anguish of a mother whose 18-year old daughter died of a drug overdose. Her response to the drug problem: “Kill the pushers.” (P. 179.) This view, that drug crimes warrant the most serious punishment, was spreading quickly. But desperation and anger were not the only factors in supporting the draconian drug laws. If we are to judge the decisions made by the “Black Silent Majority,” let’s fairly reconstruct the choices they had as they perceived them at the time.

The War on Drugs and the devastation it caused was relatively new. Poor communities have long dealt with the ravage caused by alcoholism and intoxication. The history of this on American soil goes back to the abuse and victimization of Native Americans. But the impact of dope – heroine and then cocaine – was viewed differently.

The progressive reform movement of the 1930s through 1950s — a movement focusing on rehabilitation for wrongdoers and drug users — had failed. Progressive rehabilitative prisons — supported by the Black Silent Majority — were part of the New Deal era thinking. New rehabilitate service-oriented vocational facilities were to be financed in part by the Works Progress Administration. The reformation experiment was premised on the notion that offenders could be educated and rehabilitated. Education, service and treatment programs were mainstays of the prisons and eventually were integrated in parole and release decisions. The reformers succeeded in championing a system, backed by legislation that was focused less on conservative concerns about coddling prisoners and more on liberal concerns about rehabilitation and re-entry.

So why didn’t the Black Silent Majority support rehabilitation and prison reform? They did, but by the 1970’s the reformist prisons had devolved into the maximum security, violent, highly racialized, resource-poor, over-crowded institution we have today. Rehabilitation as a legislative measure was no longer a political or realistic option. How then to save Harlem and the rest of the black community? Facing this Hobsons’ choice, the Black Silent Majority chose the Rockefeller drug laws and unduly harsh sentencing penalties. In retrospect, they were wrong to do so, but their options and resources were limited. Fortner’s contribution is a careful and meticulous account of the role they played. It would serve us well to consider also the realities of their motives and choices.

Cite as: Margareth Etienne, Saving Harlem from Drugs: A Hobson’s Choice, JOTWELL (August 14, 2017) (reviewing Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (2015)),