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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)),

The Causes of Punitiveness

Locking Up Our Own: Crime and Punishment in Black America is a look at the recent history of African-American attitudes toward crime. In many ways the book is a codicil to Michelle Alexander’s well-known work, The New Jim Crow: Mass Incarceration in the Age of the Age of Colorblindness, and to the writing of people like Glenn Loury and Ian Haney Lopez.  Alexander, Loury and Lopez argue that today’s hyper-incarceration and long sentences result from a white-dominated legal system bent on removing blacks from the streets, using the “war on drugs” as a cover, and imply that things would be different if blacks had been in control of the system. Locking Up Our Own contests those views.

Making Forman’s case is difficult, because largely white legislatures were and still are in charge of criminal justice in most jurisdictions. But Forman’s focus is on Washington, D.C., where, from the mid-1970s through the end of the twentieth century (the period covered by the first five chapters in his book) African-Americans were in power. Not only were that city’s chiefs of police black (as was the case in many major cities), but the municipal council—the body effectively in charge of crime definition and sentencing in D.C., given Congress’ acquiescence in matters of criminal justice—was usually majority African-American as well. Yet the criminal justice policies in that city were at least as punitive as those in other jurisdictions.

Forman demonstrates this point by cataloguing the city’s refusal to de-criminalize marijuana possession, its willingness to significantly enhance the penalties for drug possession and gun-usage-during-a-crime, and its acquiescence toward brutality and racial profiling by African-American police. Forman points out that these developments were fueled by exploding crime rates, drug epidemics, and the rise of gangs, ostensibly the same concerns that led to tough-on-crime policies elsewhere. He also notes that, as in other jurisdictions, the tougher policies were favored by the (black) middle and upper class, while visiting most of their impact on the poor. Black politicians and newspapers in D.C. decried the ravages of drugs on youth, with addiction to heroin, PCP and crack called the “new slavery.” They also bemoaned the huge spikes in violent crime (Forman notes that the spike in the 60s and 70s was the highest recorded in U.S. history), and the so-called “revolving door” of justice that led to quick release of criminals. The result was a black-led movement to expand criminal liability and increase sentencing maxima.

Forman is careful to point out that many D.C. policymakers also criticized the debilitating, criminogenic effects of racism and the need for addressing “root causes.” But they were usually unable to resist the quicker, more dramatic crime control solution. In part, Forman shows, that was due to strong public sentiment favoring that approach. For instance, in the early 1980s, the D.C. Council, bucking its typical tendencies and with the support of the federal government, refused to pass stiff mandatory minimum sentences for possession of drugs with intent to sell. Yet the public overwhelmingly voted for an initiative overriding the decision.

The overall picture Forman paints provides a counterweight to Alexander’s New Jim Crow story. Does he overdo it? Forman’s footnotes come from numerous primary sources (mostly newspapers and hearing transcripts). Where he can, Forman cites data from other cities that support his thesis. He notes, for instance, the strong support among the black community for the notorious Rockefeller drug laws in New York, and the widespread support among black police chiefs for law enforcement techniques like D.C.’s Operation Clean Sweep that resulted in one arrest for every 14 D.C. residents. He also emphasizes, and convincingly shows, the step-by-step, almost accidental manner in which our current highly punitive sentencing policies developed over a number of years, suggesting that hyper-incarceration is not part of a masterplan on the part of either whites or blacks.

At the same time, Forman stresses at several points that African-Americans are still imprisoned at a higher rate than whites, despite similar involvement with drugs, and that the structural causes of crime and drug influxes are intimately related to institutional racism. He also describes in some detail the impact of racial profiling, albeit by black as well as white cops. In this respect, his book differs from Michael Fortner’s recent publication, The Black Silent Majority: The Rockefeller Laws and the Politics of Punishment. While Fortner also documents vigorous black support for tough-on-crime policies during the 60s and 70s, particularly in New York, he is less attentive to the effects on criminal justice policy of white resistance to racial equality.

In the last chapter of the book Forman very briefly updates the story through the present. It turns out that in 2014 the D.C. Council passed the same type of marijuana decriminalization bill that foundered in 1975, at least in part because crime rates had dropped and the populace no longer associated marijuana use with violent crime. But Forman also criticizes the lack of willpower to reduce punitive responses toward more serious crime. Here and elsewhere he broaches the idea of treating drug- and gang-related crimes as a public health problem rather than a criminal one. One of the best lines in the book comes in his description of negotiations with a prosecutor who refused to grant leniency to one of Forman’s clients because the client had not responded well to treatment in the past. Forman replied, in effect, “Why don’t courts ever reject prison on the ground that it hasn’t worked in the past?”

I would have liked the final chapter to include more nuanced observations about the strategies policymakers could muster when confronted with the inevitable next crime wave and the resulting push for more imprisonment. But the lack of detail can be excused in part because, as Forman points out, just as mass incarceration occurred through many small steps, its rollback will probably only be accomplished in the same way. In providing a diagnosis of how we got where we are, Locking Up Our Own can help move us in the opposite direction.

Cite as: Christopher Slobogin, The Causes of Punitiveness, JOTWELL (July 17, 2017) (reviewing James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (2017)),

Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence

Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

Why is it so easy for police to kill Black people?

The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

The article’s central thesis is that the Fourth Amendment facilitates the ability of police ultimately to kill Black people. This doctrine has allowed unbridled racial profiling that forces baseless interactions between police and Blacks. Carbado writes, “The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping Black people and killing Black people.” (P. 125.)

The author begins by offering an overview of the problem of police killing of Blacks and Fourth Amendment jurisprudence. He provides an in-depth discussion of events in Ferguson, Missouri, which marshals statistical evidence of how Blacks were the recipients of a disproportionate number of front-end contacts with police, contacts that often serve as predicates for back-end police violence. The article then progresses to discussing how racially disproportionate policing is endemic elsewhere in the country and to exploring the claim that “African Americans often experience the Fourth Amendment as a system of surveillance, social control, and violence, [rather than] a constitutional boundary that protects from unreasonable searches and seizures.” (P. 130.)

The work demonstrates how a significant body of Court precedent renders African Americans vulnerable to repeated police interactions. To illustrate the groundwork that the Court has laid in this area, Carbado constructs hypotheticals that clearly show how police may conduct themselves without triggering Fourth Amendment protections for the individuals they survey and engage. The scenarios provide a piercing glimpse of how police can initiate a myriad of interactions that trigger suspicions that escalate into searches, arrests, police violence, or worse.

By exposing spaces where racial discrimination in policing may dwell, these hypotheticals cement Carbado’s argument and provide the reader with an excellent pedagogical piece. The hypos venture through a range of scenes, step by step, in a way that would benefit any law student learning to master the intricacies of search and seizure law. Yet this piece is written to be accessed by lay readers, community organizers, advocates, and policy-makers who fight for social justice. Taken wholly, these scenarios paint a visual of how “Fourth Amendment law underprotects [African Americans] and overprotects the police.” (P. 131.)

Carbado’s work stands as a multifaceted piece of scholarship that has widespread utility and appeal. The work is a creative and intelligent contribution to legal scholarship that lays out a critical frame for Fourth Amendment jurisprudence. Simultaneously, it is a valuable teaching tool for undergraduate, graduate, and law school courses, and has potential to teach far beyond the typical law review readership. As this work analyzes real-life situations in a simple fashion, it has a “Street Law” appeal that is certain to help educate the public. As such, this manual-like work will undoubtedly be useful to groups like Black Lives Matter, Color of Change, and others catalyzed by relentless police brutality.

Many will surely find this article to be a great intellectual support in the struggle for police reform. Carbado’s article is compelling, high-caliber scholarship that rises in opposition to the status quo. The content is of immediate benefit to all readers, particularly those seeking to understand their Constitutional rights against abusive and deadly police conduct. This work is an example of Ivory Tower knowledge created to benefit the public directly. Carbado successfully tells the story of how courts enable police oppression of minorities, and this effort is likely to garner plenty of street cred along the way.

Cite as: SpearIt, Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence, JOTWELL (June 19, 2017) (reviewing Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN),

How Local Police and Prosecutors Protect Immigrants

Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN.

Local governments are increasingly taking the role of protectors in these fear-filled times for federal immigration policy. A popularly used term for this protective role of cities is sanctuaries. But what does giving sanctuary mean in the immigration and local law and policy context? What protections are arising?

One of my favorite empirical scholars working at the intersection of immigration and criminal justice, Professor Ingrid Eagly, set out to gather data on the policies of local police and prosecutors that protect immigrants. Professor Eagly’s empirical work is always illuminating because through her clinical work with clients, she has her fingers on the pulse of what matters right now for people in the trenches.  For example, she conducted the first national study documenting the dearth of representation by counsel among immigrants facing removal. She also conducted the first study of the impact of televideo proceedings to adjudicate the cases of people in immigration detention.

For her latest project, Professor Eagly used public records requests to obtain policies pertaining to immigrants from police, sheriff’s and prosecutors’ offices in four of the most populous counties of the most populous state in the nation: Alameda, Los Angeles, Santa Clara, and Ventura counties in California. These four counties offer a particularly powerful vantage point into immigrant-protective policies pioneered among local law enforcement because they are among the most immigrant-protective jurisdictions in the nation. Studying the approaches taken by the vanguard can help inform future developments as other jurisdictions try to forge their own policies.

It is also an important and illuminating research approach to examine departmental policies to shed light on law enforcement governance and internal practices. Police and prosecutor office policies play a critical and under-appreciated role in shaping institutional norms and filling in gaps and blind spots in the laws on the books. The policies also fill in the substance behind catchphrases such as “sanctuary city.”

Eagly’s textual analyses of the collected policies reveal variation across approaches but also three central types of immigrant-protective police and prosecutorial policies. The first cluster involves local police refraining from inquiring about immigration-related violations. The second involves prosecutors weighing the risk of deportation in their pleas and structuring charges to avoid triggering deportation. The third involves refusals to cooperate with federal requests that immigrants in jails be detained for immigration-related processing and deportation. Within each category, she classifies the different ways and contexts in which the local agency restricts collaboration with federal immigration authorities.

Judging by the volume of press calls on the issue, there is great public interest and confusion over how local governments are resisting federal immigration enforcement crackdowns. Professor Eagly’s taxonomy offers a valuable guide for the press and public as well as the academy. Her appendices are also an excellent aid, offering charts that compare key similarities and differences in the protections defined in the policies she gathered.

Finally, the article also offers important insights for policy-makers and activists charting the future of the state and local-government role in protecting immigrants. She notes that the three main rationales for immigrant-protective criminal justice policies to date tend to revolve around (1) community trust, (2) immigrant integration, and (3) reserving scarce resources for state and local priorities rather than working for the feds. She argues that while these are important justifications, they only capture part of the problem in need of redress. To these three rationales, she traces and develops a fourth norm in need of vindication, what she terms “immigrant equality.” By this she means addressing how immigrants are punished more harshly than citizens for the same crime. Two people commit the same crime.  One person gets prison and then probation.  Another person gets prison and then banned from the country he calls home. Is this just? If a community does not think so, what can it do about it? The article is thus both an excellent guide to our present and a guide to forging the future.

Cite as: Mary Fan, How Local Police and Prosecutors Protect Immigrants, JOTWELL (May 23, 2017) (reviewing Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN),

The Sources of American Punitiveness

Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016).

In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).

As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices.

In many respects, Kleinfeld’s central contribution in Two Cultures is not to explain European and US differences so much as to give them a philosophically informed interpretation. In short, American and European penal practices reflect very distinct but internally coherent ideas about the nature of crime, of people who commit crimes, and about the obligations of society and the state to those people. Kleinfeld suggests that the history of US/European differences can be told more cogently in terms of their very different responses to seven key ideas: immutability, devaluation, banishment, forfeiture, evil, dangerousness and dignity. Some of these ideas have their roots in religion, and others in modernist discourses like eugenics and social science, but Americans and Europeans respond to them very differently, thus the two cultures.

Dignity can serve as a summary for them all. Europeans, according to Kleinfeld have evolved a concept or value of human dignity in which basic rights of belonging inhere in the very humanity of people and thus cannot be forfeited. One only has to consider Norway’s treatment of mass murderer Anders Brevik, sentenced to 21 years for killing nearly 100 people and recently granted the opportunity to study for a university degree from his confinement. In his ground-breaking book, Harsh Justice (2003), James Whitman of Yale argued that America largely lacks a concept of dignity. Kleinfeld suggests that Americans do not lack a dignity idea, but instead have a different one, which he labels “democratic dignity.” If human dignity cannot be lost, democratic dignity can be lost rather easily, by any display of behavior or character trait that positions you as an enemy of the social peace and a betrayer of the social contract.

In my view the biggest weakness in Two Cultures is Kleinfeld’s failure to confront head on how much America’s history of slavery, colonial dispossession and anti-immigrant eugenic exclusion has shaped the construction of “democratic dignity”. To an important extent, these punitive and exclusionary features are not products of America’s democratic culture, but rather its deeply anti-democratic commitment to “whiteness as property” as Cheryl Harris brilliantly named it some years ago. To his credit, Professor Kleinfeld does not ignore the racial critique of American penality, but he seems to view it as an independent normative problem to the features he attributes to American democracy. Yet if we view “democratic dignity” as both democratic and racist in its construction we can question some of the causal significance Kleinfeld is inclined to give to violence. Are we really so different then Europe in having many more repeat or violent criminals? Or have we evolved racially normed institutions of social control that concentrate on the same populations generating the appearance of outsized recidivism rates? (See Elizabeth Hinton’s From the War on Poverty to the War on Crime (2016) for a plausible argument that concentrating on black inner city neighborhoods artificially raised the urban crime rate in the 1960s.)

Perhaps not surprisingly for a synthesis of sociology and philosophy undertaken by a criminal law scholar with a philosophical bent, the failings of Two Cultures lie in its historical and empirical sides. Fortunately, this a moment when superb scholarship on both is available (in addition to Hinton see recent books on mass incarceration by Mona Lynch (Hard Bargains: The Coercive Power of Drug Law in America’s Courts (2016)), John Pfaff (Locked In: The True Causes of Mass Incarceration — And How to Achieve Real Reform (2017)) and James Foreman (Locking Up Our Own: Crime and Punishment in Black America (2017)). Professor Kleinfeld is offering something relatively rare in contemporary legal academia: a jurisprudential methodology which can collaborate with the social science and humanities methodologies that often seem to dominate the criminal law field at this time. On this account, one which I also endorse, an important task of scholarship is to understand the ideas behind social practices and movements; not because they operate independently to shape the world, but because it is through understanding their conceptual nature that we can best trace their effects and displacements in the world. This is the sort of work that the philosopher and the historically informed interpretive sociologist or historian can do better working in collaboration then working separately.

Cite as: Jonathan Simon, The Sources of American Punitiveness, JOTWELL (May 9, 2017) (reviewing Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016)),