Aug 14, 2024 Aya Gruber
U.S. foreign policy was built on a foundation of sexual conservatism. This is Eva Payne’s bold thesis, which at first blush seems to afford an outsized role to sexual politics in global policy. Yet upon reflection, it makes perfect sense that there is an international manifestation of America’s well-documented domestic intertwining of “sexuality and statecraft.” Scholars of global law and policy have long recognized the phenomenon of “American exceptionalism,” which is the nation’s Janus-faced self-representation as a uniquely exemplary nation that need not accept international consensus or law and also a world leader with a prominent role to play in collective global affairs. Scholars of American sexuality and sexual regulation have demonstrated how U.S. authorities’ preoccupation with dangerous sexuality shaped criminal and family law, border policies, the contours of the public street, and the federal policing apparatus. Indeed, the mutually constitutive relationship between American-style sex-aversion and the American penal state is the topic of my forthcoming book The Crime of Sex. Payne, a historian, brings together these two seemingly disparate subjects of legal and historical analysis—international relations and sexual regulation—and demonstrates their interconnectedness through an eminently readable chronological tale based on painstakingly detailed historical, legal, and archival research.
The story begins roughly in the mid-nineteenth century, when the America of mostly rural sprawl began to more resemble its urban British and continental counterparts, and the cities brought with them a flourishing sexual culture. Britain and France had long wrestled with how to approach commercial sex, the least offensive term for which was “prostitution.” All three governments were particularly concerned with syphilis, which sexist state officials blamed exclusively on the “filthy” and “fallen” women. Accordingly, authorities singularly focused on controlling prostitutes as the solution to the pressing public health problem. In Europe, authorities favored the regulation model, a quite dystopian system where women bought licenses to work in commercial sex, and their funds lined the pockets of corrupt bureaucrats and paid for compulsory testing, quarantine, and painful invasive and ineffective treatments. Poor women, women of color, and victims of settler colonialism, like the Indian women under British rule, endured the worst treatment by police and public health officials.
Across the pond, America had just experienced the “second great awakening” evangelical revival. Moralistic American authorities, who had long held that the U.S. was a more puritanical and therefore more civilized nation than European (Catholic) countries and even Britain, were aghast at the idea of licensed prostitution. Prominent feminist and anti-slavery activists rejected regulation because of religious concerns over sex and humanitarian concerns about both prostitution’s negative effect on women and the regulation model’s violation of women’s liberty. The Civil War was an inflection point, as were the Spanish-American War and World War I thereafter. Civil War soldiers’ sexual demands brought a glut of prostitution, and the war led to the abolition of slavery. Having “solved” American slavery, Northern white leaders and activists turned their attention to prostitution—eventually termed “white slavery”—and “new abolitionism” was born. American new abolitionists joined with British activists and took their message international, seeking to replace regulation with abolition in Western Europe, Britain, and their colonies. Before the United States even had a fully formed national governance structure, the prostitution issue brought America on to the world stage where it could present its exceptionalist face as a leader in morality and humanity.
With the Spanish-American War, the U.S. joined the ranks of colonizer countries, and new occupations, borders, and migrations brought with them new sexual issues. Military officials became preoccupied with sexually-transmitted diseases, with some remarking that syphilis was a more pressing problem than other tropical and contagious diseases and even casualties from combat. New abolitionists who championed male continence and the banishment of brothels from military areas squared off with military leaders who believed that soldiers required sexual release and that regulation was the best way to prevent soldiers from bringing back diseases generated by “degraded” tropical women and poisoning the blood of the white nation.
As the U.S. moved into the era of social purity and white-slavery panic, the new abolitionists found a strong champion in John D. Rockefeller, Jr. With his funding, they were able to form the powerful American Social Hygiene Association (ASHA) and devise a plan to eradicate prostitution abroad at home: the “American Plan,” which stood in opposition to the “French Plan” of regulation. By this time, abolitionism had lost most of its feminist and humanitarian character, and the American Plan’s means to eradicate prostitution included strict immigration control, massive surveillance, policing, and incarceration, as well as the invasive testing and treatment characteristic of regulation. In the lead up to World War I, U.S. officials imperialistically imposed the American Plan in the Caribbean and France. By the end of the war, the U.S. touted the American Plan as a primary contributor to the superiority of American military strength and as evidence the nation should take a moral leadership role in international affairs. ASHA, now fully integrated into Wilsonian international affairs, asserted a prominent place for itself in the fledgling international order. Its reports on prostitution—now called “the traffic in women” because “white slavery” and its racist connotations had fallen into disfavor—influenced the newly formed League of Nations to prioritize fighting the transnational sex trade. Fighting prostitution was Americas path to “world-wide influence, not only in relation to armies but in the social life of the nations,” as one U.S. authority stated in 1917.
There is much more to say about Empire of Purity, but hopefully this snapshot synopsis gives a sense of the richness of Payne’s historical research and analysis. It is engaging and important reading for any scholar or lawyer interested in American exceptionalism, international law and policy, sexuality and the law, and sex work/trafficking. Because America’s exceptional sex aversion has manifested as both formal legal prohibitions and informal cultural injunctions against discussing sex, academic analysis often overlooks the foundational role sex plays in U.S. law, policy, and culture. Empire of Purity fills an important knowledge gap by bringing sex exceptionalism to American exceptionalism.
Jul 25, 2024 Aliza Bloom
Criminal law scholars have long been concerned with the system’s pervasive harms to race and class-subjugated communities, and more recently they observe the subordinating functions of criminal law and procedure. In their fascinating new study, G. Ben Cohen, Justin B. Levinson, and Koichi Hioki present data on the connection between race and group-imposed liability. Their paper critiquing the racially disparate application of felony murder and accomplice liability supplements this conversation with empirical findings that racial bias affects perceptions of who is acting alone versus in concert with others. I believe that these psychological findings are also relevant to discretionary policing. Just as implicit racial bias affects courts and juries’ application of felony murder and accomplice liability, it affects the assumption of group liability in police decisions to surveil, approach, interrogate and arrest young people associating in groups in public spaces.
Cohen, Levinson and Hioki address the operation of racial bias in homicide doctrine. First, they detail the pervasive critiques of felony murder and accomplice liability, which “sit at the fulcrum of the criminal legal system’s false promise of individualized moral culpability.” These doctrines eliminate a prosecutor’s need to prove either of the core elements of murder: that the individual committed the act (actus reus) or that they intended to do so (mens rea). Courts engage in a problematic inquiry where intent and action are inferred, providing fertile grounds for racial bias. The Court grappled with felony murder but ultimately found that even the death penalty does not violate the Eighth or Fourteenth Amendments where a person, without intent to kill, had a “major participation in the felony committed, combined with reckless indifference to human life.” And despite the fact that accomplice liability undermines fundamental notions of individualized guilt, it has become a powerful tool, especially for statutes defining offenses based on group affiliations including gang enforcement, and RICO charges. As the authors explain, prosecuting people for felony murder and accomplice liability addresses a problem that does not exist because accomplices are already punished for their actual crimes.
In a prior study, these authors connected findings from an Implicit Association Test (IAT) to illustrate that people associate Black and Latinx people with future danger, and white people with future safety, arguing that criminal law’s “future dangerousness” test is infused with racial bias. Here, they explore why implicit bias may lead to an automatic individualization of white men and deindividualization of Black and Latino men. Social scientists use the term “entitativity” to describe the circumstances under which people are perceived as being members of a group as opposed to individuals. Research shows that certain ethnic groups are perceived as having a higher level of entitativity than others, which led these authors to study psychological factors of assigning accomplice liability. Here, the authors used an IAT with over 500 jury-eligible participants to measure racialized differences in how jurors perceive defendants to be acting alone or members of a group. Participants were significantly more likely to quickly group together Black and Latino names with words associated with groups, such as “group, pack, crew, them, crowd, folks, bunch” and white facts with individuality, such as “individual, self, one, solo, single, somebody, character.’” They conclude that all actors in the system may possess a psychological baseline whereby they automatically perceive Black and Latinx defendants as group members, not individuals, thus inviting disparate application of accomplice liability and felony murder guilt by social association.
These troubling findings lend support to the chorus criticizing the racialized application of felony murder, accomplice liability and expansive conspiracy doctrine. They suggest that prosecutors and juries are imputing mens rea unfairly for Black and Latinx defendants, compounding already draconian doctrines. And the authors conclude that any credible legal system cannot impose the most severe punishments (including death) based on presumptions and imputed elements, especially where race plays a significant role in the operation of those presumptions.
Cohen, Levinson and Hioki do not explore whether racial bias influences the finding of group liability outside of the homicide context. Their data, however, illustrates that regular people ascribe higher levels of entitativity to Black and Latinx people than their white counterparts, and are more willing to assume collaborative intentions among those groups. This finding is incredibly relevant to the discretionary policing of young people. I believe that police reliance on an individual’s suspicious companions, both in contemporaneous pedestrian policing scenarios and in the context of a person’s association with individuals allegedly in a gang, erodes the Fourth Amendment’s requirement of particularity of suspicion. The prevalence of companion-based suspicion and the erosion of particularity required for police intervention in these various contexts is particularly troubling. It exacerbates the racialized impact of policing and disproportionately affects poor and young people because of the tendency to associate in public places.
Cohen, Levinson and Hioki’s excellent paper harnesses data to advocate elimination of felony murder and expansive accomplice liability. The authors’ new empirical support about implicit racial bias also suggests a fundamental problem for the world of discretionary policing.
Cite as: Aliza Bloom,
Assuming Collective Criminality in Policing, JOTWELL
(July 25, 2024) (reviewing Ben Cohen, Justin B. Levinson, Koichi Hioki,
Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study, 101
Denv. L. Rev. 65 (2024)),
https://crim.jotwell.com/assuming-collective-criminality-in-policing/.
Jul 15, 2024 Sheldon Evans
Esther Hong,
The Age of Creativity and Crime (May 6, 2024), available at
SSRN.
There is a thin line between creativity and crime. In an era of scholarship where there is a deluge of books, articles, and commentary on mass incarceration, prosecutors, policing, and the nuances of crime and social justice, Professor Esther Hong dares to be creative. Hong skillfully weaves together the criminal sociology of Émile Durkheim with modern neuroscience and legal standards to persuasively argue that creativity and criminality often overlap. She explores what that means for the overcriminalization of youth and the insatiable human pursuit of progress.
In The Age of Creativity and Crime, Hong is taking a path less traveled that lies at the intersection of sociology, child development, science, and criminology. And the payoff is incredibly worthwhile. In the piece, Hong argues that there are aspects of criminal law that set arbitrary boundaries between positive creativity and negative criminal activity. She does this by relying on the sociological literature that has found many links between the character traits of creativity and those of criminality. People that fall into the “creative” or “criminal” category both refuse to follow set norms, have a distrust of authority, and tend to think outside of the box to solve common problems. How much difference is there between a person who expresses their artistic creativity by splashing art on a canvas when compared to a similar artist splashing art on the side of a commercial building? One is considered a positive creative influence, while the other is criminalized as a defendant creating blight. Hong’s contribution is to highlight the similar character traits shared by those acting on the spectrum of what society considers as positive progress versus what society considers as criminal harm.
Hong focuses her theoretical claims by explaining its significance for teenagers and young adults in the criminal legal system. Scholars of old have used well-worn principles from developmental science and neuroscience to show that the prefrontal cortex of the brain that is responsible for impulse control does not fully develop until the early to mid-twenties. Hong takes this understanding and adds to it, expanding it with studies on creativity during this developmental period. These studies show that creativity is at its highest during these crucial young adult years. Thus, one might say that the lack of impulse control in these young years is part of a natural superpower that young people have; they have yet to fully develop cognitively, which means they have yet to consider and internalize all of the rules, restrictions, and authority figures necessary for the functioning of society. The malleability of the brain during child development is a wonderous thing that allows young people to learn multiple languages and develop problem-solving techniques much faster than adults can. Consequently, the negative lack of impulse control that contributes to criminality must be balanced with nurturing youthful yearning to express creative impulses.
Hong next makes an even bolder contribution by asserting that both creativity and criminality play important roles in social development and progress. It is not controversial to affirm creativity, ingenuity, ambition, and related entrepreneurial traits that contribute to human progress. But crime?
The idea that there are latent social benefits of crime that forward moral progress is a controversial one, but one that finds support in a larger consideration of the role that criminal law plays in society. Durkheim used the timeless example of Socrates, who he believed was “justly” put to death for a legitimate crime of corrupting the youth of Athens. But the creativity and intellectual contributions of Socrates—which were integral to his crime—were critical to the development of Western thought, and ultimately helped towards shifting morality to decriminalize such crimes in the future.
The broad point of Hong, who echoes Durkheim, is that criminalizing certain actions forces society to make hard moral judgments, which inevitably results in mistakes. The harshness of the criminal law is what helps mold our collective moral compass towards justice. Is it right to hang someone if they accidentally kill another, or to lock somebody up for life for selling large amounts of narcotics? Murder will always be murder, but the common law has developed over many centuries to distinguish between various grades of culpability. Modern times have seen a radical shift in the decriminalization of marijuana use. Defining crimes and punishment forces us to make judgment calls on the abstract lines between acceptable and abhorrent behavior, and forces us to make moral progress when we discover errors in these judgments.
These theoretical and scientific arguments are perhaps best illustrated with examples. The tech industry is a gift that keeps on giving in this regard, and serves as a powerful case study for the often-overlooked connection between the celebration of creativity, the punishment of criminality, and the role both play in social progress. I believe the most salient example is that of Mark Zuckerburg, who famously started his empire as a college student by hacking Harvard databases to help facilitate the first iteration of Facebook. Legend says he also recruited hackers to work for him, finding this rogue computer programming skillset to be valuable to the type of company he was trying to build. Not only did hacking demonstrate an extremely high proficiency for reading and writing computer code, but it also showed a youthful and deviant form of swashbuckling that broke the rules of the old world in order to build a new world.
Hong herself also turns to the tech industry to illustrate her theoretical contributions by detailing the rise and fall of Sean Parker and Elizabeth Homes. Parker started Napster when he was 19-years-old, and he dreamed of a world where music could be shared for free. But his infamous business model was illegal because it flouted copyright law. Holmes also founded her company, Theranos, at a young age, but her dreams and ambitions of building a new standard for medical testing caused her to cross the line into criminality when she mislead investors. I would be remiss if I didn’t add the recent rise and fall of Sam Bankman-Fried to this list, whose innovations in cryptocurrency markets turned into a death-spiral of misappropriating client funds. Indeed, a handful of other fellow Forbes 30 under 30 alums have gone on to be indicted for a host of financial and white-collar crimes.
Hong next seeks to convert these theoretical contributions into practical takeaways in criminal policy. One of Hong’s suggestions is to carefully categorize different types of crimes in order to determine which types of crimes overlap the most with creativity in order to rethink overpunishing or otherwise deterring creative outlets. My own thoughts tangentially align with Hong’s, because I too think different crimes—whether they overlap with creativity or not—should be treated differently. Perhaps most importantly, this categorization requires the separation of causation and correlation.
First, there are crimes that are caused by creativity because the creative activity is intertwined with the criminal act. Zuckerberg’s hacking, Parker’s disregard of copyrights, and the street artist’s mural would fall into this category. I see these as the strongest cases for Hong’s position because the creative outlet of these young adults is considered in and of itself a crime. But there are weaker, correlative examples, where creative personality types engage in criminal behavior that is unrelated to their creative outlet. This might be explained because creative people, or those exercising their young-adult creative superpower, are generally disruptive and go against the flow of normality; therefore, somebody who shows extreme creativity in their business might also disregard legal rules for a number of reasons. They might be operating under the entitlement that such legal rules do not apply to them, or they might see such legal rules as getting in the way of developing their creative vision. I would put Holmes and Bankman-Fried in this category. The ultimate takeaway is that understanding the relationship between creativity and criminality can help us chart a new path that finds a balance between fostering creativity towards positive social outcomes, and not using the criminal law to unnecessarily punish creative outlets.
Hong’s article is the type of scholarship that pushes the criminal legal field forward. It challenges traditional criminal legal epistemology by considering interdisciplinary connections that add value to the understanding of crime and punishment. Hong’s contribution itself captures the spirit of creativity. And just as it does in the criminal context, this creativity contributes to our progressive social growth.
Jun 17, 2024 Christopher Slobogin
By now, the great American incarceration tragedy is old news, as are most ideas about what to do about it. But then along comes this book, Excessive Punishment: How the Justice System Creates Mass Incarceration, edited by Lauren-Brooke Eisen, a former prosecutor and journalist who is now senior director of the Justice Program at the Brennan Center for Justice. Consisting of 38 chapters by 38 authors, along with an introduction by Eisen, the book provides a refreshingly informative and often inspiring take on our incarceration problem. It is refreshing because each chapter is very short (all are under 10 pages once the notes are taken out) and written in punchy, concise language shorn of scholarese. It is informative because, even for someone like me who has written quite a bit about the topic, new insights abound, if only because the authors include not just law professors, but sociologists, criminologists, defense attorneys, prosecutors, directors of advocacy and research entities, investigative journalists, federal and state officials, and a number of formerly incarcerated individuals. It is inspiring because, while all of the authors offer searing diagnoses of our obsession with punitiveness, they also provide bracing stories of people resisting it or provocative means of undermining its consequences.
If there is one central message in the book, it is that our system is far too harsh, for a variety of reasons. Eisen’s introduction argues that “[i]ncarceration has become about neither rehabilitation nor holding people accountable. Instead, it has become about retribution.” (P. 2.) Jonathan Simon agrees, writing that “[t]he appeal of accountability, of paying a debt to society, is supposed to be reintegration[,] in reality, it has usually meant the opposite—sanctions into perpetuity.” (P. 21.) Jeremy Travis and Bruce Western, in the book’s final chapter, put it this way: “The great injustice of the punitive posture of contemporary criminal justice [is] to attribute a superabundance of moral agency to those who, by virtue of economic, demographic and social disadvantage, often had the fewest choices to make.” (P. 339.) Backing up this point, Lenore Anderson points to research finding that even victims, many of whom know their perpetrators, prefer rehabilitation over punishment (P. 30.) Peggy McGarry starkly concludes that “we seem to be content to waste the lives of those who have broken the law.” (P. 258.)
So how did this happen? Alison Seigler describes how concern about sentencing disparities associated with the rehabilitative ideal led both the left and the right to condone mandatory minima, truth-in-sentencing, three-strikes laws, and all the other paraphernalia of the tough-on-crime era (P. 78.) Eisen’s own chapter, as well as the chapters from Morgan Godvin and Nkechi Taifa on drug policy and the chapter from Alia Nahra and Hernandez Stroud on policing, document how federal funding incentives fed this hyper-punitiveness, with an especially devasting impact on communities of color. Kim Taylor-Thompson examines the expansion of transfer jurisdiction for juveniles, a development that she argues had particularly adverse effects on Black children perceived as dangerously unpredictable (in contrast to their white counterparts, who were often seen as treatably impulsive). McGarry notes Nixon’s 1970s Southern strategy that sought to use the fear of “Black crime,” induced by civil rights disturbances in urban areas, to bolster criminalization efforts. Adam Gelb writes of “anticipatory sentencing,” a term he uses to explain why, even in jurisdictions with parole, sentences can be quite long; prosecutors and judges, aware that parole boards often release prisoners after a fraction of their maximum term has been served, make sure that term is heightened. Other chapters make clear how every aspect of the system—probation and parole supervision, collateral consequences, deportation, legal fines and fees, and solitary confinement—has become, through explicit and implicit policy choices, a vehicle of punishment rather than rehabilitation, making them barriers to successful re-entry into society. Travis and Western summarize the indictment as follows: “we live in an era of punitive excess because the American people, through our democratically elected representatives, have chosen it.” (P. 341.)
On a more positive note, the book highlights both successful efforts at resisting the punitive current and reform efforts that reject the punitive premise entirely. Blake Strode details the holistic defense model developed by the Bronx Defenders that provides services well beyond legal defense work, including help with social security and disability claims, child support and custody matters, and supportive referrals to social service providers (P. 263.) David Singleton describes efforts in several states aimed at providing a mechanism for reconsidering long sentences. Ram Subramanian emphasizes that some European countries manage to simultaneously treat prisoners with dignity and reduce crime rates, and Steven Chanenson, Jordan Hyatt and Synove Anderson describe an experiment in Pennsylvania that suggests the same thing can happen in the United States as well. Several chapters reference restorative justice programs, although interestingly—given its current vogue in academia—the abolition movement is mentioned only obliquely and only by a couple of authors. Most poignant are the stories told by Kathy Foer-Morse, Christopher Blackwell, Rahsaan “New York” Thomas and Shon Hopwood about how they survived abusive and dehumanizing prison environments.
For anyone wanting an eclectic yet well-informed view of American incarceration today, the distilled wisdom in this book is well worth reading.
May 20, 2024 Samuel Shaw
Judges holding bail hearings in urban and suburban courthouses dispense “stranger justice.” All they know of the defendant before them is in the court file. For rural judges, it’s different. Enmeshed in a “density of acquaintanceships,” they’re likely to “have personal information external to the court record about many defendants … .” (P. 187). So far, so good: more information should lead to better-informed bail determinations. But the other side of the coin is that rural defendants have access to fewer bail administration services, like substance use counseling, monitoring, and bail bonding. More knowledge and fewer resources means that a rural judge might know exactly what a defendant needs to ensure their safe return to the community and subsequent appearance at trial – and yet be unable to provide it.
That is the core contention of Jordan Gross’s Pre-Trial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. The article interrogates whether national frameworks for bail reform fit rural Montana communities. But quietly, it’s more ambitious than that. The article assesses the proposals of the Uniform Law Commission’s Pretrial Release and Detention Act (UPRDA) as applied to rural Montana. In the process, it reveals the frailty of “Uniform” anything in the context of bail reform. It also models a better way forward: courthouse-by-courthouse solutions sensitive to local conditions. Bail reform, we learn, is not generalizable. Gross’s approach holds promise for jurisdictions both urban and rural – but it will be resource-intensive.
Because the vast majority of bail determinations are made by state courts, state legislatures appear at first glance to be the institution best able to reform the institution. The Article complicates this picture: states that are “rural” by statewide population density contain urban areas. Uniform statewide practices will work well in some places and poorly in others. Even the county is too large a unit for context-sensitive top-down reform. Take two communities in Yellowstone County. That drug counseling and monitoring are available in Billings, the largest city in Montana, is of little use to the defendant in Custer – a town of 145 nearly an hour’s drive east.
Rural legal scholars have long contended that our society’s programs and policies are based on an “urban assumption.” The same is true for legal reform movements. Gross points out that Washington, D.C., long hailed as a national model for bail reform, operates under a set of conditions very different from those present in rural communities. For one, many “rural” states have a right to bail in their state constitutions, thus erecting a hurdle to moving to a no-bail preventive detention model. And urban model jurisdictions like D.C. have a much greater density of professionals (like substance abuse counsellors and bail bondsmen). This empowers judges to tailor pre-trial release to the needs of their clients. Risk assessment tools, embraced by the UPRDA and intended to scientize release decisions, may be validated in one jurisdiction but work poorly in another.
Gross brings empirics to back up her contention about the limited legitimacy of risk assessment tools with rural judges. The University of Montana’s Rural Justice Initiative surveyed judges in the state, and the results were revealing: they are interested in alternatives to incarceration, but many found existing risk assessment tools unsatisfying. These tools use only the information about the defendant in the court file; rural judges knew more. And their outputs may be based on urban assumptions about availability of pre-trial services, which rural judges find inapplicable to local circumstances. They thus tended to deviate from the tool’s suggestion, usually in the direction of imposing more onerous conditions of release.
This challenge is compounded by the fact that validating a risk assessment tool for local circumstances is resource-intensive. Using national criminal justice data won’t work. Gross observes that American Indians are “vastly over-represented in the justice-involved populations in Montana . . . but the [American-Indian] demographic is frequently completely absent from national criminal justice statistics” (P. 218). State-level data is limited and poorly validated; county and community-level data is practically nonexistent and expensive to collect.
Enhanced access to appointed counsel – another UPRDA suggestion – maps poorly onto rural Montana. While the state’s public defender system is beleaguered, Gross’ research shows that nearly all defendants are already represented by counsel at bail hearings. She suggests further research into whether improving the quality of this representation, which is often pro forma, would see more defendants released pre-trial – or whether limited local resources would be better spent on improving access to other pre-trial services and support systems.
Gross asserts that reducing rural pre-trial detention will require ultra-local efforts like the amendment of local court rules and county prosecutors’ office policies. Even the commercial bail bondsman, much-maligned in the national bail reform discourse, will have a role to play in communities with few pre-trial services available.
This all sounds painstaking. Gross acknowledges this, and she yields that it lacks the pizazz and potential for universality that attract attention and funding from national non-profits. But I contend that the same density of acquaintanceship that makes national reform models poorly-applicable to rural jurisdictions affords them an advantage: it is harder to incarcerate one’s neighbor than a stranger. This opens the door to mercy in criminal procedure, of the sort theorized by Stephanos Bibas.
Bail reform is not generalizable, but Gross’ approach to localizing it is. Her article is therefore a must-read not just for scholars and practitioners in Montana, but for policy-makers in every jurisdiction who seek to adapt bail reform to local conditions.
Apr 18, 2024 Mary Fan
Trying to unmask Seattle Police Department police officers who may have participated in the insurrection at the U.S. Capitol on January 6, then-law student Sam Sueoka turned to public records requests under state sunshine laws. Six police officers who were in Washington, DC on January 6 sued Sueoka and other members of the public seeking information, aiming to block release of the information. Meanwhile, the Seattle Office of Police Accountability found that two of the six officers had violated departmental policies or laws in their conduct during the U.S. Capitol riot on January 6. The report did not disclose the officers’ names. A state Superior Court Judge sided with Sueoka on the right to public disclosure, but a panel of the state appellate court reversed, siding with the police officers on secrecy. This case involving my local police department—reportedly home to the largest number of officers identified as in DC during the January 6 events—is just a recent example of the myriad legal battles surrounding police secrets and illustrates why I find Christina Koningisor’s article Police Secrecy Exceptionalism in the Columbia Law Review so timely and important.
Koningisor explains that every state has “transparency regimes”—sets of statutes that include public records law that give the public access to information, open meetings and open-data laws, among other obligations. Police departments are theoretically an agency like other governmental agencies bound by such transparency regimes. Yet police departments enjoy numerous protections that maintain opacity and police secrecy. Koningisor excavates the web of carve-outs and exemptions for law enforcement that together creates what the article terms “law enforcement exceptionalism” that the article analogizes to the secrecy that national security agencies enjoy. Protests and pain over police killings have led to radical transparency-based ideas like police-worn body cameras and reforms in police transparency laws. Yet, as Koningisor’s excellent article shows, the matrix of laws and practice exempting police departments from transparency regimes remain robust, maintaining police secrecy exceptionalism.
A valuable contribution of the article is to collect and explore the web of transparency laws and exemptions scattered across the codes of fifty states. Koningisor offers a taxonomy of exemptions, such as law enforcement-specific exemptions, investigation-related exemptions, privacy-related exemptions, public safety-related exemptions, and even trade secrecy-based exemptions.
Amplifying the impact and analyses, Koningisor does not just stop at the laws on the books. Rather, the article tackles the realities of statutory construction and constriction by police and bureaucratic practices, not just statutory text and judicial interpretation. Recalcitrant and narrow construction by responding police agencies can magnify the web of exemptions and exceptions, and narrow access provisions.
Studying myriad practices on the ground across fifty states with numerous local departments is a challenge. Methodologically, Koningisor draws on the nonprofit news site MuckRock’s dataset of public records requests and law enforcement agency responses. MuckRock’s dataset is generated via its web site, which gives users a streamlined way to submit public records requests. The dataset contained approximately 21,000 requests to 3,500 state and local law enforcement agencies across all 50 states. The dataset also contained about 24,000 requests to other agencies not involved law enforcement. Koningisor found that the requests submitted to law enforcement agencies via MuckRock had worse response rates, rejection rates, and other metrics of nondisclosure than requests submitted to agencies not involved in law enforcement.
Sueoka, the law student who filed the January 6-related public records requests, is currently applying those precocious talents as a public defender. This also is illustrative of the practical utility of a strong command of police transparency and secrecy regimes. Access to information can make a difference in cases and clients’ lives. Understanding how to navigate the web of transparency regimes and exceptions has great practical utility. This is another reason why I celebrate Koningisor’s article. One of the highest compliments I can give is that the article bridges academia and practice, and has real-world as well as scholarly impact.
Mar 22, 2024 Jonathan Simon
Katherine Becket, Monica Bell, and Forrest Stuart,
Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022).
This short book chapter by three of America’s leading scholars of law, policing, and social inequality, Katherine Beckett, Monica Bell, and Forrest Stuart, may be easy to miss because of its publication in a specialized edited volume on drug policy, policing, and harm reduction, rather than the prominent law or sociology journals in which these authors frequently publish. That would be a shame however (thus this jot), because it packs some crucial insights about our current conjuncture in criminal justice reform in the United States, with major implications for how we consider the future.
First, it is a helpful corrective to the recent revisionist accounts of the war on drugs. These revisionist accounts have challenged what they take to be an exaggerated estimation of the significance of the war on drugs in producing mass incarceration by some of the most influential narratives on the latter. (I’m thinking here in particularly of John Pfaff’s very important book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) and its critique of Michelle Alexander’s a The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).) Pfaff corrects the shorthand logic that equates mass incarceration with the war on drugs by demonstrating that most drug sentences are short compared to those for violent or serious property crimes, and that sentences for drug crimes, especially possession, only accounts for a fraction of the growth in incarceration we experienced during the era of “mass incarceration” (the end of which we are still awaiting).
Beyond Harm Reduction Policing however is an important corrective to that corrective. It reminds us that regardless of its contribution to the overall incarceration rate, a punitive response to drug crimes beginning in the 1980s was one of the defining features of the punitive turn of the late 20th century, and one that had a particularly major impact on communities of color. Drug arrests, for example, grew more than fourfold between 1980 and 2006 (when they peaked). Such arrests did not mean that someone would end up in a cage. The growth in supervisory sentences was far greater, touching more than a million people a year at its peak compared with 400,000 with a sentence of incarceration in jail or prison. Nevertheless, each one of these sentences represented an exposure to physical control (and existential threat) by police officers, and at least a short exposure to jail in most cases.
The impact of this was hugely concentrated on Black Americans. Between 1980 and 2006, the rate of arrest for Black Americans went from 5 per 1000 persons to more than 15 per 1000, while the rate for White Americans grew from 2.2 to 5 per 1000. Each one of these arrests, even if it did not result in a sentence of confinement to a jail or prison, had specific and almost certainly negative effects on the legal consciousness and economic prospects of the person arrested.
A second important point is that while the peak of arrests may have been reached in 2006, it remains very elevated, and far above the number of arrests in 1980 (by about a million extra arrests per year). The authors point out that suburban and rural law enforcement agencies are significant sources of these high arrest levels. Much of the perception that the “war on drugs” is over has developed in large cities, where attitudes toward harsh drug policies began shifting toward “harm reduction” as early as the 1990s. In the suburbs and in rural areas, political tolerance for drug users remains low and support for the use of criminal sanctions to discourage it remains high.
The recent pattern of growing suburban poverty and urban gentrification means that these harsh policies remain highly concentrated on communities of color, particularly economically marginalized Black communities. These suburban and rural law enforcement agencies feed arrests into prosecution offices that are less likely to have seen a “progressive” trend than their urban neighbors. Because state laws remain remarkably punitive toward even drug users, and especially punitive toward drug sellers (a frequently ambiguous distinction), these defendants face harsh consequences, especially if they do not agree to a quick guilty plea. Much of the perceived reduction in the “war on drugs” has come through the use of discretion by more progressive urban prosecutors, leaving the punitive armory of our penal codes largely intact.
Many have also assumed that the recent refocusing of the public perception of the drug crisis from “crack cocaine”, largely associated with Black communities, to opiate addiction, largely associated with whiter rural and suburban communities, was yielding a more sympathetic approach to those caught in addiction and more readiness to offer treatment rather than punishment. A closer look, offered in the chapter, suggests that there may be more concern with trying to help those willing to seek treatment, but also growing interest in punishing harshly those perceived as promoting these overdose prone substances.
Third, the chapter offers an important and critical gaze at the first wave of reforms that are taken to have tempered the harshness of the war on drugs. The authors offer a compelling case that reforms address both the harms of the punitive system but also the harms of unmanaged addiction and unregulated drug markets. Perhaps the most popular reform has been the “drug court,” about which the authors are particularly (and persuasively) skeptical. These programs typically give judges the power to offer the dismissal of criminal charges for those defendants whose crimes were drug offenses or driven by drug addiction, and who successfully complete court-mandated programs–typically abstinence-based treatment programs. But these judges retain and use the power to criminally punish those who relapse during treatment. These programs often hold unrealistic expectations of whether participants can achieve abstinence without relapses, and punitive attitudes toward those who do relapse. Overall, the drug court movement has added to the power of criminal courts rather than reducing their punitive potential.
The authors also offer a critical but more positive view of the leading alternative harm reduction approach, pioneered in Seattle and San Francisco under the acronym LEAD for Law Enforcement Administered Diversion. In its original version, LEAD allowed police to use their discretion to place people arrested for drug crimes (or drug related property crimes) directly into treatment programs without leaving the power to prosecute over their heads (participants could be prosecuted for new crimes but not for their original arrest offense). This diversion approach is superior in recognizing the likelihood of temporary relapse into drug use and the need to truly remove the threat of punishment. The main critique of these original programs was that they gave to police the power to select who could participate, leaving the major sources of drug arrests to be the major determinants of who received diversion.
The newest versions of the program, currently under experiment in Seattle, take this power away from the police and give it to public defenders, social workers, and families. Courts now operate as the gatekeepers. This is not without punitive risk, but it also assures transparency. The best version includes close monitoring of the pool of people arrested and those actually selected, to detect racial bias that may disfavor people of color, and particularly Black people, who may be perceived as less amenable for treatment. These new versions of LEAD are an important sign that abolitionist practices can be realistic as well.
Cite as: Jonathan Simon,
Don’t Dismiss the War On Drugs Too Fast, JOTWELL
(March 22, 2024) (reviewing Katherine Becket, Monica Bell, and Forrest Stuart,
Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022)),
https://crim.jotwell.com/dont-dismiss-the-war-on-drugs-too-fast/.
Feb 21, 2024 Eric J. Miller
Reparations for the harmful impacts of policing on Black communities—and other communities of color—attracted attention when it became plank of Black Lives Matter founder Patrice Cullors’ demands for police and prison abolition. However, the Cullors remarks on reparations are more suggestive than definitive for a well-worked out reparations program. Into this void has stepped Professor Alexis Karteron, who recognizes that standard approaches to police accountability work primarily to provide individualized and episodic remedies, despite the police often harming whole communities through their assaults on identifiable individuals. Karteron argues that a reparations framework can contribute to developing community-wide and structural remedies. This reparations approach provides an important alternative to the individualized account of harm and redress familiar in criminal law theorizing, and highlights the special way that reparations can play a role in police accountability.
Karteron’s promotion of community-wide reparationist remedies builds on her discussion of other, more individualized forms of police accountability and their serious limitations. For example, Karteron identifies the serious drawbacks of constitutional tort claims under 42 U.S.C. §1983 and state law equivalents. These lawsuits focus on discrete police harms, one person at a time. The legal system presents often insurmountable informational, financial, and procedural hurdles. For example, state exhaustion requirements, usually under the state’s tort claims act legislation and federal constitutional law, may make it hard for a plaintiff to find counsel willing to represent a victim of police violence. Often, they also have a very short time period in which to secure counsel because of these exhaustion rules. Other legal doctrines, such as standing to bring suit and the statute of limitations, further operate to narrow access to the two major legal remedies: monetary damages and injunctive relief. At best, only direct victims who have suffered an “actual injury” receive compensation, while witnesses, family members, and other bystanders get nothing, even though they may be directly traumatized or otherwise impacted by police violence. To the extent that the community has a remedy through injunctive relief, the scope of injunctions is limited by doctrines disfavoring judicial oversight of the executive branch, and especially law enforcement.
The other ways that communities may seek structural limitations on police violence include federal Department of Justice pattern-and-practice investigations that result in consent decrees between the United States government and county or municipal police forces. However, such investigations are extremely rare, affecting only a handful of the 17,000 police departments in the United States. Furthermore, it is not the community, but the Department of Justice, that sets the terms of the consent decree. A the court, not the community, determines when the target police department is in compliance.
Finally, Karteron notes the limitations of civilian oversight of police departments. These bodies often have limited powers, have limited ability to interact with other bodies with the power to investigate the police, conduct individualized investigations rather than engage in systemic or structural interrogation of the police role, and owe their composition to political influence rather than true representation of community interests.
It is against this backdrop of failed accountability for police violence that Kartron turns to reparations as a remedy.
Karteron identifies a number of remedies that reparationists have historically sought. She especially focuses upon the use of apologies for police violence to build trust with communities victimized by discriminatory policing. Apologies are certainly a start. For example, Professor David Kennedy, a scholar at the John Jay College of Criminal Justice has written for some years on a process that looks a little like reparations, which requires the police to acknowledge and account for historical discrimination against the communities they police as a means of fostering community trust. However, apart from Professor Kennedy’s work, there has been little attention to reparations as a remedy for police violence in the academic literature.
From a reparations perspective, apologies are best placed within a larger effort to identify both the individual and systemic nature of police violence. Victims of police violence often seek to expose the identity and actions of those who attacked or tortured them, or who killed their family members. This form of accountability is often sorely lacking. Without accounting for the individuals and institutions that produced the harm, those individuals and institutions are rendered invisible or able to deny or obscure their role in police violence. Worse, failures of accountability preclude efforts to ensure one of the first goals of reparations, which is to prevent these forms of police violence from happening again.
Karteron’s core insight is that reparations often involve group- or community-based remedies rather than individual ones. Providing a more detailed account of reparations that addresses the idea of intergenerational historical discrimination against groups and communities would provide some clarity to Professor Karteron’s useful, group-focused model.
A reparations framework helps us recognize that police violence is often structural, not individual, and directed towards undermining the power and self-sufficiency of communities of color, not simply individuals. Policing often works to enforce territorial boundaries, as well as political power. All of this is designed to keep poor Black, Brown, and Indigenous people in their place. Viewed this way, policing reparations would challenge not only the individual-payment model of Section 1983 and some reparations movements, but also the standard, top-down models of federal settlement plans and oversight commissions, which keep power away from the impacted communities, and place the power to determine remedies within the hands of court-appointed monitors or county- or municipal-appointed commissioners. A proper reparations model would instead demand that the body determining remedies is constituted from the members of the impacted communities who can then determine for themselves what sorts of remediation is warranted.
Karteron suggests that reparations might fit with demands to defund the police. Defunding the police may count, indirectly, as reparations , but transferring resources from one municipal or county agency (the police) to another (mental health, etc.) need not occur in a manner that directly empowers the communities victimized by police violence. Rather than the community members having a say in the way these resources are used, the state, county or municipality still controls spending. Karteron’s reparations focus suggests that defunding the police would need to be community-directed to fit more snugly within the reparations framework.
The reparations focus may also encourage some acknowledgment of class differences among communities susceptible to police violence. For example, it may be a feature of the social construction of race that certain groups are especially vulnerable to state-sponsored violence; this vulnerability is shared by all members of the community just because of they are Black or Brown or Indigenous. However, that vulnerability need not be shared equally by all members of these communities. The burdens of police-dispensed state-sponsored violence may fall especially heavily on poor Black, Brown, and Indigenous people. Accordingly, in terms of vulnerability to repeated acts of police violence, members of these impoverished communities of color, especially within large metropolitan areas such as Los Angeles, New York, Chicago, and Houston may have more in common with each other across racial lines than folks within each racial group. That fact alone complicates some of the calculus of the nature of reparations and who is eligible to receive it. It also argues for both intra- and inter-community coalitions to demand reparations when police violence is the issue.
For example, in Los Angeles County, extreme, persistent police violence—as documented by journalists, decades of reports by public and private agencies, and the Los Angeles Sheriff Civilian Oversight Commission—has inflicted serious, and often fatal injuries upon members of low-income Black, Brown, and Indigenous communities across Los Angeles County: Lancaster and Palmdale in the Antelope Valley; East Los Angeles, Compton, South Los Angeles, and Lynwood. What all of these communities have in common, apart from being terrorized by Sheriff Deputy Gangs is that they are poor and non-white. Reparations for these communities must address not only individualized trauma and loss, but also the political, social, cultural, economic, and health impacts upon these communities. As Karteron’s article makes clear, simple damages payments are not enough for these types of communities, either to stop the violence or compensate the communities for what is a structural problem. Something closer to a defund-the-police movement that puts impacted community members in positions of power is needed to address the County’s abject failure to end police violence, identify, terminate, and prosecute the wrongdoers, and provide some sort of healing for the individuals and communities who are on the receiving end of their acts of state-sanctioned terror.
Many contemporary social justice organizations have added reparations to their platforms without explaining exactly what reparations means. At the very least, Karteron’s idea that it includes a community-focused form of relief is a significant advance in identifying some new ways forward to specify reparations for police violence as a group-based remedy for structural discrimination. Her work should inspire others to take up the mantle of imagining what healing and accountability looks like for these vulnerable communities subject to state violence.
Jan 18, 2024 Elena Larrauri
The paper I am reviewing is noticeable because it focuses on “open prisons.” Generally, prison scholars tend to speak and write about “prisons,” and when comparing among countries, the comparison tends to be limited to imprisonment rates. In some rare cases the sentence length is also discussed. In their article Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, authors Kristian Mjåland, Julie Laursen, Anna Schliehe and Simon Larmour expand the discussion by addressing the type of prisons. I welcome this opportunity to talk about open prisons.
The paper sets out to determine if open and closed prisons share the same basic characteristics, or if, on the contrary, one could defend that open prisons are experienced as less harmful. In order to answer this question, the paper uses 728 interviews to find out prisoners’ subjective experience of being imprisoned in Norway or England and Wales in an open or closed prison. The paper also explores the use and functions of open prisons in both countries.
It is useful to begin with a definition of what is meant by “open prison.” In some Scandinavian countries an “open prison” generally means a building with less security and more autonomy inside the building. In other European countries, like Spain, an ‘open prison’ emphasizes contact with the outside world, and therefore the person must be carrying out some activity outside of the facility, only returning to the building to sleep (Martí, 2019). This point reminds us of the necessity of looking behind the labels to find out how ‘open’ an open prison is.
Regarding their function, open prisons can be used at the last part of the sentence, as a way of progression for longer sentences ( and reintegration function), or as entry points, where all short sentences, for example, are served. In England and Wales, being sent to an open prison requires a risk assessment finding of low risk, and the individual must have less than two years left to serve. In Norway, short sentences (up to two years) usually can be served in an open prison, and regarding longer sentences, the law mandates consideration of the possibility of being sent to an open prison at the last part of the sentence. Norway’s policies thus favor having individuals finish their sentences in open prisons.
Those different policy choices explain the different uses of open prisons in both countries. Open prison capacity is 32% in Norway, and 6.5% in England and Wales. Direct entries to open prisons are 65% in Norway, 0% in England and Wales. Fifty percent of the sentenced population spent some time in open prison in Norway, 5% in England and Wales. Release from open prison amount to 54% of releases in Norway, 6.6% in England and Wales. No wonder that the authors assert that when speaking of what makes Norway ‘exceptional’:
“The extensive use of open prisons, and the harm reduction they produce, is the single most important contributor to Norway’s more human punishment practices” (P. 17.)
I turn now to the final point: how open prisons are in fact experienced by the prisoners. I am little bit weary of the literature that focuses on the pains and frustrations of open prisons because it can lead us to some desperation. Like closed prisons, open prisons are also subject to strong criticisms.
Of course, open prisons are not “harm-free” entities. As the relevant literature has pointed out, there is the extreme of being with “one foot out, and one foot in,” and having to be always very careful, and exercising an enormous and continuous amount of self-regulation (like “being put continuously on trial”). In addition, Martí (2019) points out the intrusion experienced by the prisoners, having to follow a set of rules in their daily life outside prison that impacts in their personal and family life (looking for a job and keeping it, no company of suspect friends, no drugs), and that they feel are ‘nobody else’s business’.
In an interesting turn, and without excluding some specific pains of open prisons, the authors Contrasts in Freedom find out that the main harms in open prisons are similar to the ones experienced in closed prisons. For example, the five main problems mentioned by prisoners in Norway are the same: Missing somebody, missing social life, feeling that you have let down your family/friends, feeling that the length of your sentence is unfair, feeling that your life is being wasted. So, one could think that after all “a prison is a prison is a prison.” However, these same problems are experienced in a less severe and acute way than in closed prisons. As the authors state
“It seems clear then, that open prisons are capable of alleviating at least some of the pains of imprisonment” (P. 12.).
As a criminologist with a law degree, I was surprised that the authors did not touch on the issue of who is to decide the classification of prisoners (in open or closed prisons). In some countries this is decided by the sentencing judge, but in Spain this classification is decided by the Prison Administration. This is no minor issue, since these types of imprisonment are so different that one can say that they really are two different kinds of punishments. This, of course, concerns the issue of proportionality. When the judge sentences to three years imprisonment, it is not the same to serve three years in a closed, ordinary prison as in an open prison (not to mention if the administration classifies you in a solitary regime!).
The argument in favor of the classification by prison administration is that this task involves an “individualized evaluation” based on “treatment needs.” I am however very skeptical since the figures at least in Spain have been approximately the same for years: 80% serve in closed ordinary prison and 20% in an open regime, which seems to indicate that by default everybody is placed in an ordinary prison.
The possibility of using open prisons for short sentences, and mandating, as Norway does, consideration of the use of open prisons at the last part of the sentence by law, or as part of sentencing guidelines, might also help alleviate an additional problem: that frequently sentenced people end up in a closed prison not because of the gravity of their offence, but because they don’t meet the requirements used to classify them in an open prison (namely, having a job, family support, and being drug free). In this way, it seems obvious that what is being punished is social exclusion.
In sum, open prisons are not without problems, but as the authors state, they do seem to have many advantages: they are less harmful, more cost effective, they might promote reintegration, and for those concerned with the punitive bite, they are still experienced as a (prison) punishment.
Cite as: Elena Larrauri,
Open Prisons: For a Less Harmful Prison, JOTWELL
(January 18, 2024) (reviewing Kristian Mjåland, Julie Laursen, Anna Schliehe & Simon Larmour,
Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, 20
European J. of Criminology 1641 (2021)),
https://crim.jotwell.com/open-prisons-for-a-less-harmful-prison/.
Dec 6, 2023 Jessica M. Eaglin
As mass incarceration and criminalization impact more Americans, efforts to address the impact of a criminal record on an individual have become more popular. We’ve come a long way from simply “banning the box” on employment applications. Today, states across the country are expanding access to criminal records relief for those touched by criminal law’s expanding web of enforcement. Diversion and expungement have emerged as two promising reforms to further that effort.
But how does criminal record relief work, exactly, and who benefits from it most? Amy Kimpel addresses these questions in her recent article, Paying for a Clean Record. Kimpel demonstrates that, through participation in diversion and expungement programs, defendants often incur various fees and fines that make gaining a clean record costly. This tendency disproportionately burdens poor and black and brown defendants such that these reforms threaten to entrench racial caste in the United States. Through her descriptively rich analysis of these two seemingly different practices, Kimpel help readers understand the complexity of criminal legal reform in the United States.
Diversion and expungement refer to two different forms of criminal record relief. Diversion refers to programs that identify defendants who have been arrested and charged with an offense, but they are given a “second chance” opportunity to avoid a criminal record by completing various requirements in lieu of pleading guilty and receiving a criminal sentence. For example, a defendant may enter drug treatment or domestic abuse counseling as part of a diversion program and, upon completion of that program, all charges would be dismissed with prejudice. Expungement, in contrast, refers to the process of erasing or sealing a criminal record after conviction. This includes conviction and arrest records. In recent years, many states have expanded the categories of defendants who can benefit from this process. Some have made expungement automatic.
Both forms of criminal record relief are costly. As Kimpel describes, prosecutors or legislatures impose diversion application and enrollment fees. Participants also pay separate costs for the programming and educational classes required in the diversion program. These costs accumulate on top of additional charges like court costs, supervision fees, prosecution fees, drug lab fees, and public defender fees that are increasingly imposed upon defendants throughout the criminal process. Expungement is no better. Obtaining a copy of one’s own criminal record from state law enforcement agencies is the first step to expungement, and it can cost anywhere from $30 to $550 per petition. Many states require that the defendant have paid off all fees, fines, and restitution associated with the original case before proceeding with the expungement process. Other costs included in the process range from the cost of fingerprinting, getting the application notarized, and getting a certified copy of the conviction record. Such costs can double the price of a petition in some jurisdictions. These costs impact how defendants travel through the criminal legal process. As Kimpel demonstrates through vignette, the costs shape whether one enters a diversion program and when (and if) one can access criminal record relief post-conviction.
These costs, alarming on their own, are particularly concerning when placed in social context. Criminal record relief exists on an uneven playing field within the criminal legal system and society. Black defendants are more likely to be arrested for drug offenses and less likely to be able to pay their bills if they encounter a $400 emergency. As result, the fee structure around criminal record relief is likely to amplify racial disparities, not mitigate them. Additionally, the fee structure motivates perverse financial incentives. Diversion programs can be quite profitable for prosecutors and legal administrators, which can create a greater demand for revenue and prosecutions. Further, access to a clean criminal record is even more valuable in social context. With the expansion of the criminal legal apparatus and technological advancements, criminal records shape society in profound ways. For example, criminal background checks are used to employ, educate, house, and more. Because criminal records operate as a means of social exclusion, limiting criminal record relief based on ability to pay will entrench preexisting racial inequality.
Kimpel’s article leaves little room for doubt that the financial aspects of criminal record relief is a problem. Yet it is through her solutions that Kimpel signals the complexity of criminal legal reform for the reader. On the one hand, she urges more study on the intersection of poverty and criminal record relief programs. She suggests access to diversion and expungement should be expanded and offered cost free as a default, or at least with some connection to indigency. On the other hand, she recognizes the threat that expanding these programs may legitimate the expanded criminal legal apparatus.
Interestingly, Kimpel points to emerging litigation as a potential way to thread the needle between both concerns. She identifies existing Equal Protection and Eighth Amendment challenges to diversion and expungement programs on the basis of financial need. But the promise of this litigation, according to Kimpel, lies not just in winning the cases. She explains how litigants may be “winning by losing” in the sense that the cases shape statutory and policy efforts to expand criminal record relief. Such litigation can also illuminate new ways to critique the criminal legal apparatus. It is this willingness to operate on multiple fronts when imagining a pathway forward in criminal legal reform that makes Kimpel’s article so intriguing and inspiring.
