Nov 6, 2023 SpearIt
When you think about why people are convicted of a crime, it seems absurd to say, “because there are bad people” or “because people do bad things.” Such responses, by themselves, would be an over-simplification that overlooks key contributors. For example, some might commit crimes due to the inability to feed oneself or one’s family. It is also true that some people confess to crimes they didn’t commit, often just to get out of the criminal system. Some people did nothing wrong at all and were wrongfully convicted. Similarly, mass incarceration defies any singular explanation.
In Mass Incarceration Nation, former prosecutor and law professor, Jeffrey Bellin, seeks to describe the primary factors that have brought us to this place in history. In the last few decades, the United States has become a world leader in incarceration, such that prison systems in places like Texas and California rank among the largest systems in the world. While explanations about mass incarceration proliferate, Bellin identifies multiple contributions through a more nuanced approach to understanding the problem. While many might consider race and class as the driving factors, as this work shows, the picture is more complicated.
One of the first useful contributions Bellin makes is to define the term “mass incarceration.” He defines “mass incarceration” in historical terms, noting that we have never experienced the present volume or rate of incarceration. He also defines it in comparative terms. Put simply, when our punishment practices are compared to other countries, we are exceptional, even among the top carceral states. Bellin notes that our excess, both in the number of people incarcerated and the grossly disproportionate impact on minority communities, “raises important questions about the legitimacy of the law enforcement enterprise and…hints that there is more going on than crime and punishment.” (P. 14.)
Equally critical is the need to distinguish the terms “criminal justice system” and “criminal legal system.” While it might seem like semantics, there are important reasons to recognize the difference. For Bellin, there are two types of cases pouring into criminal courts. The first set of cases is epitomized by crimes that society has no choice but to address—homicide, sexual assault, and crimes that create serious public harm. The system that deals with such crimes should be designated the criminal justice system, particularly because there is an element of justice involved, including justice for the victims. In contrast are crimes that evolved from policy-making, which try to discourage certain behavior through criminal law. Despite the fact that these types of cases, epitomized by drug crimes, go through the same adjudicative process as homicides—they are really about enforcing the law, not justice. Hence, the criminal legal system is better suited to describe those types of laws designed to stop people from doing things, as opposed to malum in se type crimes, which are harmful because they result in injustice.
With these ideas in place, Bellin considers the “building blocks” of mass incarceration. One of these crucial blocks was the desire of elected officials to appear “tough on crime.” Republicans initiated this initial shift toward penal harshness coupled with “law and order” rhetoric, which Democrats soon matched and tried to outdo. The Democratic embrace of tough-on-crime politics culminated in the 1994 Omnibus Crime Bill, which was 356 pages long and added crimes, expanded punishment for existing crimes, added police and prison funding, and stripped Pell Grant funding from people in prison, among other provisions. Together Republicans and Democrats created “bipartisan severity,” which ratcheted up punishment and directly contributed to mass incarceration.
Other factors, including legislation, led to severe consequences. Of these was the shift from indeterminate sentencing to determinate sentences, which remade the system such that “people who were convicted of existing crimes served more prison time.” (P. 49.) While there was also legislation that encouraged arrests and prosecutions and created longer sentences, shifting to determinate sentencing stripped parole boards of the ability to release individuals who no longer posed a threat to society, a power that legislators now usurped.
The problem of race is inextricable from the question of mass incarceration. Bellin’s work is particularly important because it tempers the notion that race is the main or only culprit. Instead, he engages Michelle Alexander’s The New Jim Crow and offers a compelling account of how demographic differences in offenders for some offenses complicates the narrative. Black defendants are punished disproportionately for violent offenses, and Whites tend to be punished for non-violent offenses. These fact are important to recognize, since most criminal reform excludes violent crimes. Moreover, Bellin marshals data to show that across the country, particularly in places where Whites predominate, imprisonment of Whites was drastically increased as well, even if it occurred in states with smaller populations in general.
However, this is not to say that Bellin thinks Alexander’s work lacks explanatory force with respect to race. Rather, he sees race as more relevant to those crimes that make up the criminal legal system, where “officials enjoy the greatest discretion” and where “we would expect unwarranted bias to appear.” (P. 81.) Thus, a race-centered account fits best with Alexander’s focus on the War on Drugs that has overwhelming impacted Blacks above all. Bellin also invokes events in Ferguson, Missouri to give a sobering look at how “the more discretionary an aspect of law enforcement, the more we can expect to find the influence of conscious and unconscious prejudice.” (P. 82.) He cites a DOJ report on Ferguson, Missouri, which gives an extreme illustration of the point. As a town that struggled financially, Ferguson used the criminal system to generate revenue, turning the system into a “piggy bank” for the town, dramatically illustrating “how a small town’s application of race-neutral criminal laws could, in fact, re-create Jim Crow.” (P. 82.)
Although there are multiple persuasive pieces to the story Bellin tells, perhaps the most convincing is the final section entitled “The Mechanics of Mass Incarceration.” (P. 93.) In this part, the author explains the role police, prosecutors, and judges play in fueling the process. He uses the metaphor of a “prison road” that leads to prison to describe each actor’s role in the system, including more police making more arrests, prosecutors going after more low-level offenders, and judges seemingly unconcerned with diverting people from prison. These actors exacerbate other factors that contribute to mass incarceration.
Of all the points the author makes, the strongest is to show that “tough on crime” just doesn’t work; that is, deterrence doesn’t work. Using crime-funnel statistics, he demonstrates that only five percent (5%) of offenders of a particular crime will face incarceration. In other words, only five percent of robberies ever result in the offender’s incarceration. The evidence suggests the system is not tough on crime, but rather, just tough on those five percent.
The author proposes sweeping ideas to remedy the mass incarceration problem, the most crucial of which is to “(mostly) abolish the feds.” Bellin sees a great need to reduce federal law enforcement and prosecution. While the federal prison system is dwarfed by the number of people held in all state prisons, it is as important a contributor to mass incarceration as the largest state and is the “easiest place to see that Mass Incarceration is about policies, not crime.” (P. 170.) From the author’s view, the federal government must “abandon its decades-long focus on drugs, weapons, and criminal immigration enforcement.” (P. 173.)
Bellin proposes other measures to reduce prison populations. He believes that shrinking the infrastructure of the criminal legal system is the most obvious candidate, “to change the law so that violations of essentially regulatory rules do not lead to incarceration.” (P. 175.) Other potential for reform is to reduce admissions to incarceration and shorten stays. There are multiple mechanisms to reduce admissions including decreasing police activity, relying more on drug courts, decriminalizing drugs, and increasing prosecutorial dismissals, among others. Finally, the author sees two main levers for shortening prison stays including reducing the actual sentences announced by judges and increasing the frequency of early release. More specifically, since data show that individuals age out of crime, he proposes making twenty-one years the longest possible sentence noting, “long sentences serve a purpose. They assure people that society takes crimes seriously. But relative, not absolute, sentence length is the key to this symbolic exercise.” (P. 193.)
This book is a solid introduction for anyone wanting to see the big picture about mass incarceration and deserves to be widely read. It combines valuable statistics with common sense arguments to lay out a comprehensive account of this complex process. Despite its nuance and academic structure, the work is accessible and written in clear language, which makes it as useful for law students and stakeholders in the criminal system as it is interesting for the lay reader.
Oct 10, 2023 Maartje van der Woude
As a (socio-)legal scholar interested in the world of borders and migration, I always feel rather inapt when people ask me about the ‘technological dimension’ of bordering. This dimension, although extremely central and crucial to understanding current day bordering practices both from a legal and an empirical point of view, seems to be an area that requires specific expertise that I do not have. Therefore, I am always on the lookout for articles to fill in this gap. Finding Valeria Ferraris’ article that not only touches upon the legal and technological aspects of the digitization of borders in Europe but that also reflects upon this development through a more sociological lens felt like finding a little gem that allowed me to feel updated on this ever-moving and developing sub-area of border studies. And, as is often the case, the article shows how, for legal scholars, it is also crucial to get an insider view and understanding of the workings of the law in practice. With developments in the world of data and technology moving so rapidly, it is important to keep track on whether the law – and in particular legal protection – is moving at a similar speed.
The article brings together the author’s multiple year-studies of the transformation of border control practices into practices driven by data processing and guided by all sorts of technologies. The article adds to that existing line of research an interesting new take on the concept of border performativity as used by Wonders in her 2006 publication Global flows, semi-permeable borders and new channels of inequality: border crossers and border performativity. As Ferraris explains, while citing Wonders, the concept of border performativity aims to ‘explain how borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification. This dance is not only choreographed by state policies and laws, but it is also increasingly shaped by larger global forces’(P. 5, citing Wonders 2006: 64). Whereas the notion of border performativity has been used and reflected upon by various scholars working in the ever-expanding domain of border and migration studies, Ferraris adds to the existing literature by investigating ‘how data transforms both the State and the migrants’ border performance’ (P. 5).
Before discussing some of the author’s findings, I want to highlight one of the other aspects of the article that deserves special appreciation. In the section ‘Methodological background’ the author explains how the current article came into existence: It is the result of looking at data that had been collected through desk research and field work for different projects in a different, more reflexive, way. As the author explains on page 3, this new way of looking at her ‘old’ (as in: previously collected for different projects) data, allows her to critique her previous research experience and, in so doing, “1) to go beyond the focus upon the risks for fundamental rights of the digital border control which has been at the core of my previous research, 2) to shed light on the crucial point of this article, namely, the challenges of the new datafied migrant to transform the border from below, and 3) to find new insights for further research questions.” It is very valuable for fellow researchers to see how the author made the turn from, or perhaps better said added a perspective to, a more legal understanding of the digitization of migration and border control. Apart from showing the additional level of complication that needs to be brought into legal discussions on bordering practices to fully grasp the implications of the increased use of data and technology, it also illustrates the value and the importance of re-using empirical data that was collected with (an) other question(s) in mind.
While giving a state-of-the-art overview of the broad range of technological ‘barriers’ that have been erected in Europe to ‘manage’ the mobility of people, the article illustrates how the walls of Fortress Europe might be invisible to the outside world, but in reality, very present through a wide array of ‘systems’ filled with a broad variety of data on individuals, their migration journeys, biometrics, etc. Although the idea of an actual wall following the US-Mexico example is currently being debated as well, it is clear that whereas such a wall would be largely symbolic, the data-walls around Europe are very real in the role that they play in social sorting processes.
In reflecting on the impact of technology on border performativity, Ferraris specifically highlights the impact of the growing interoperability of migration databases which she sees as the ‘final step towards the EU technology-driven borderscape’ (P. 6). Whereas many of the IT systems used as part of this borderscape were developed separately for narrow and specific purposes and with a narrow focus on migration control, Ferraris shows how this has drastically changed over the years. The databases have become multi-purpose databases used interchangeably for migration control and border control, as well as for reasons of crime control. This raises a set of questions regarding the legal protection and access to justice of people on the move who get captured in the maze of this digitized net of social control.
Yet, besides this Ferraris raises the interesting question what this means for the possibility to ‘transform borders from below’. As a result of the ‘datafication’ of migrants, there seems to be even less room for humanizing migrants, as well as less room for pushing back against ‘the system’ which no longer relies on the actions of human beings but more so on the assessments, calculations, and interpretations of technological devices. The system is no longer the bureaucratic apparatus in which street-level bureaucrats, while using their discretion, can be seen as the real policy makers, but an IT system where ‘Computer’ says either ‘Yes’ or ‘No’. This new ‘data border’ raises new legal questions and challenges that, according to the author, will require migrants to seek the assistance of legal experts that are not only versed in migration law, but also in matters of data protection, and who have a solid understanding of the workings of these complex systems. Although the author thus foresees less legal pushback – on an individual case-law level – against the new data-border around Europe, she does end her rather dystopian analysis with the open question whether ‘failure and loopholes in the implementation of the interoperability between systems could provide room for manoeuvre’ (P. 14). The answer to that question remains to be seen. Yet, asking the question is also to be seen as a call for further research not only into the legal reality of the digital border, but to also carefully study its practical implementation.
Cite as: Maartje van der Woude,
Europe’s Technology-Driven Borderscape, JOTWELL
(October 10, 2023) (reviewing Valeria Ferraris,
Entangled in the technology-driven borderscape: Border crossers rendered to their digital self, 20
Eur. J. Criminology 14773708221086717 (2022)),
https://crim.jotwell.com/europes-technology-driven-borderscape/.
Sep 14, 2023 Jennifer Chacón
For many years now, I have looked to the work of Devon W. Carbado for guidance on how to read, understand, and teach Constitutional Criminal Procedure. In his latest book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Professor Carbado summarizes, expands upon, and refines many of the useful insights that he has offered to his readers over the past decade in his law review articles. This book is a readable introduction to the Fourth Amendment, and one that would be a great teaching tool in a Criminal Procedure class.
Unreasonable offers a systematic critique of the Supreme Court’s interpretation of the Fourth Amendment over the past fifty years. A central claim of the book is that conduct that is often described in popular discourse as “police misconduct” is, in fact, entirely within the legal bounds of constitutional criminal policing. Courts have interpreted the Fourth Amendment in ways that allow police to engage in intrusive, preemptive, and racially discriminatory policing practices. While Carbado does not discount the problem of police acting outside of the bounds of the law, his focus is on the many ways that unreasonable police conduct is promoted and encouraged by law. His goal is to articulate an alternative vision for the boundaries of constitutional policing.
The body of the book consists of seven chapters, the first five of which are framed around a case or set of cases that set forth baseline rules of policing. Chapter 1, Pedestrian Checks, explores several cases that facilitate coercive police encounters with civilians in the absence of any sort of individualized justification. The chapter explains how police can stop and question people about their activities and immigration status, search homes and vehicles after obtaining nominal (and generally coerced) “consent,” and even chase someone, without having any legal basis for singling that person out in the first place. This Chapter explains how race often motivates these initial encounters, and how racial dynamics shape how they play out, even as the Court’s analysis in cases approving this type of policing ignores the racial context for these policing practices.
Chapter 2, Traffic Stops, describes how pretextual stops, embraced in cases like Whren v. United States, generate substantial racial disparities in the policing of vehicular traffic. The chapter also illustrates how racially-motivated investigative stops can quickly escalate into questioning, searches, and seizures, including (thanks to Atwater v. City of Lago Vista) the arrest of people who have committed no arrestable offense. Arrests, in turn, pave the way for extreme governmental intrusions, including deprivation of liberty, of course, but also legal swabbing for DNA and strip searching.
Chapter 3, Stop and Frisk, explores how the “stops” and “frisks” approved by the Court in Terry v. Ohio in 1968 are deployed in racially discriminatory ways, sometimes with deadly consequences. Chapter 4, Stop and Strip, uses the case of United States v. Montoya de Hernandez to explore how the logics of Terry have been used to justify strip searches upon mere “suspicion” of criminal conduct, and in the absence of a judicial warrant, in cases where the government’s interests are purportedly elevated – in the case of Montoya de Hernandez, because the search takes place at an international border. In both chapters, Carbado illustrates the racial impacts of these decisions. Chapter 3 highlights the data on the racial disparities of stops conducted by the New York Police Department. Chapter 4 includes the stories of lawsuits brought by Black and Latina women against US Customs and Border Protection agents in recent years. These lawsuits uncovered data revealing significant racial and gender disparities in who gets stopped, and the suits themselves highlight the abusive nature of officials’ conduct during these stops.
Chapter 5, Predatory Policing, explores cases that have greenlighted abusive civil asset forfeiture practices, and have permitted the collection of excessive fines and fees from individuals facing criminal charges. The chapter highlights the insufficiencies of the exclusionary rule as a deterrent remedy to police misconduct, including misconduct in the form of sexual predation.
The final two chapters explore the possibility of alternative visions of the Fourth Amendment. After a brief introduction, Chapter 6 reprints in full the Supreme Court’s unanimous decision, authored by Justice Scalia, in Whren v. United States. As discussed in Chapter 2, that case allows for pretextual investigative stops, including stops clearly made as a direct result of racial profiling. Chapter 7 reimagines the Whren decision. The rewritten opinion centers the relationship between policing practices in the U.S. and racial subordination, tracing the long history of judicially tolerated racial discrimination in cases such as Korematsu and Brignoni-Ponce. Drawing on the logics of Brown v. Board of Education, the rewritten Whren decision opines that it seems “plain wrong that the Fourth Amendment, which is intended to ensure that police conduct is reasonable, would invite, let alone permit a rule that inoculates racially discriminatory policing – including discrimination rooted in racial animus – from constitutional scrutiny.” (P. 211.) This Whren opinion braids together equal protection doctrine and Fourth Amendment reasonableness to bring the highest level of judicial scrutiny to bear on racially discriminatory policing practices.
When reading these final two chapters, it is difficult not to wonder how much difference doctrine actually makes. Would a rewritten Whren transform US policing? But Unreasonable is more than a clear and sustained doctrinal critique. This book is also a window into how race is made, and racial hierarchies maintained, through policing in the United States. Professor Carbado is one the foremost Critical Race Theorists working on questions of criminal procedure, and his brilliance is on full display in this book. In the narrative tradition embraced by CRT, the prologue opens with the story of Carbado’s own first encounter with police in the U.S. – a moment that he has described here and elsewhere as his racial naturalization; the moment when he, an immigrant from the United Kingdom, “became a Black American.” (P. 1.)
The book’s jacket also reminds the reader that Unreasonable was “published on the second anniversary of the global protests over the police killings of George Floyd,” and the author is clearly conscious of the interaction of doctrinal arguments and broader calls for police reform and abolition. Each chapter underscores this point. The policing excess and violence in Ferguson, Missouri, threads through several chapters, along with the stories of Black people killed by the police, or subjected to other forms of state violence. Carbado also shows the percussive effects of decisions that permit policing excesses in the name of national security and immigration control.
The text also nods to abolitionist claims. While ultimately noncommittal about the broader project of prison-industrial complex (PIC) abolitionism, Carbado endorses the narrower goal of “abolishing or minimalizing racially subordinating forms of power Fourth Amendment law allocates to police officers.” (P. 22.) The book focuses on doctrine, but thankfully, it does not try to convince the reader that the problems of policing can be fixed through the courts alone. Carbado writes: “I do not intend to suggest that Black people can find our way out of being over-policed through legal reforms alone – we certainly cannot. But we cannot afford to cede the terrain of law completely.” (P. 195.) Carbado is fully aware that his recommended changes to doctrine must be accompanied by broader changes to funding, governance structures, and social relations. But he also embraces the positive legal orientation of CRT – one that does not give up on the law, but that instead calls upon us to struggle for its amelioration, even as we recognize its limitations.
Cite as: Jennifer Chacón,
In Search of Reason, JOTWELL
(September 14, 2023) (reviewing Devon W. Carbado,
Unreasonable: Black Lives, Police Power, and the Fourth Amendment (2022)),
https://crim.jotwell.com/in-search-of-reason/.
Jul 21, 2023 Maximo Langer
Trevor George Gardner, Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. __ (forthcoming 2023).
After decades of a one-way ratchet towards more punitive criminal law policies that disproportionality punished African Americans, reform and transformative agendas have gained some momentum in the United States. Between 2010 and 2020 the combined state and federal imprisonment rate decreased 28%. After many years of having the largest incarceration per capita in the world, as of January 2023, the United States ranks fifth in the world, according to some sources. In 2007, the incarceration rate per 100,000 of Black people was 1,143, while in 2020 it was 662. This reduction of 42% was larger than the 35% reduction for all groups in the same period.
However, as Professor Gardner documents in his article, Rethinking Racial Equity in Criminal Procedure, deep racial disparities in the American criminal legal system remain. African Americans continue to be killed by the police, stopped, arrested, jailed, and incarcerated at higher rates than white Americans. In his piece, Gardner critically and lucidly discusses the two main ongoing efforts to advance racial equity within criminal procedures: the reform platform and the abolition platform.
According to Gardner, the reform platform—which he locates not only in scholarship, including procedural justice literature, but also in the views of most regular people—has aimed at the elimination of racial bias by police officers, prosecutors, and judges, to advance racial equity within the criminal process. Relying on the work by Paul Butler—a distinguished penal abolitionist—he questions this agenda, first, in terms of its breadth, by arguing that a more robust concept of racial equity in criminal procedure should also include racially proportionate penal outputs. In other words, for Gardner, racial equity requires not only that police officers, prosecutors, and judges do not consciously or unconsciously discriminate against African Americans, but also that African Americans are stopped, arrested, jailed, and incarcerated at the same rates as white Americans. Penal outcomes should be considered because disproportionate outcomes are in themselves a discrete harm for African Americans, since incarceration has a deep negative impact on the imprisoned and their social networks and it weakens African Americans as a group in their participation in the work force, their reception of public welfare and education, and their participation in the democratic polity.
As for the penal abolitionist platform, Gardner argues that its unique value lies on its descriptive and moral claims. Mass incarceration is indeed a social problem that has a racial dimension, and criminal law theory should not be blind to social structure. For Gardner, penal abolitionism rightly argues that there is a collective moral failure in the racially disparate outcomes of the criminal legal system, and the public debate about it must indeed go beyond the questions of violent versus nonviolent crime or official discretion in criminal procedure. This situation creates a credibility gap for the criminal justice reform project.
However, Gardner does not adopt abolitionism as a normative position because he argues it does not account for the African American interest of having state protection against private violence, and for the well-documented fact over several decades that a majority of African Americans want more rather than fewer police in their neighborhoods despite their negative views on the police. Instead, he aligns with the work of Tommie Shelby and criminal law minimalists.
To rescue the criminal justice reform project and give a normatively appealing content to African American procedural interest, Gardner argues that this project should embrace a racial proportionality principle under which there should not be a Black-white gap in penal outcomes.
However, Gardner maintains that even this newly defined procedural interest is in tension with two other African American penal interests: the security interest—i.e., the group’s interest in state protection of physical safety from private violence; and the democratic interest—i.e., its interest in exercising collective influence over penal institutions and in bureaucratic representation within these institutions. He says these three interests were generally aligned during Reconstruction, but “the alignment broke down as the criminal law threat of primary concern to African Americans shifted over the course of the 20th century from white racial violence to street violence.” According to Gardner, the breach between the penal reform project and the penal abolition project or between scholars like Randall Kennedy—whose work has emphasized the security interest through his underenforcement thesis—and Paul Butler—whose work has emphasized the need for racially proportionate penal outputs—would originate in that each side ultimately fails to properly account for each of these African American penal interests and the tension among them. Through a historical narrative supported by multiple scholarly accounts and empirical studies, Gardner illustrates the early alignment and later tensions between these three interests from the creation of NAACP up to the current mayoral administrations of Eric Adams in New York City and London Breed in San Francisco.
Gardner argues that to address this tension between these three African American penal interests and advance a more robust conception of the procedural interest that includes the need for proportionate penal outcomes, criminal justice reform must include social welfarist policies in its agenda given that structural racial inequality has been one of the drivers of racially disproportionate penal outputs. This presents a challenge for criminal-legal scholars since welfarist policies are typically not within their realm of expertise. But it is the only way to have a credible strategy to close the racial gap in penal outcomes.
This is a powerful article. Its analytical distinction between the three African American penal interests and its thicker conception of the procedural interests is very helpful to locate social and political agendas and scholarly projects, and to dissect possible strengths, weaknesses, and tensions within and between them. It also proposes a way forward to address these tensions and advance the fulfillment of our long-standing pending social duty of achieving racial equity in the criminal legal system.
Jul 3, 2023 Christopher Slobogin
One of my favorite article titles is The Deterrence Hypothesis and Picking Pockets at the Pickpocket’s Hanging, written by David A. Anderson. It has long been my intuition that, unless eyewitnesses or the police are nearby, most people actively contemplating crime are rarely deterred by the prospect of being caught and are virtually never deterred by marginal differences in the sentence they would receive if convicted. Anderson’s article reinforces that view. As Anderson’s title suggests, in merry old England, pickpockets thought they were so good at their trade they plied it even at the execution of one of their own. Anderson argues that the same dynamic applies today. Based on interviews with prisoners and a review of the literature, Anderson concludes that most violent criminals and the majority of all criminals “are impervious to harsher punishments because no feasible detection rate or punishment scheme would arrest the impelling forces behind their behaviors, which might include drugs, fight-or-flight responses, or irrational thought.” (P. 308.)
But that suggestion has not deterred(!) economists from continuing to focus on the optimal means of preventing crime. In The Economics of Crime: An Introduction to Rational Crime Analysis, Harold Winter, a Professor of Economics at Ohio University, provides a primer of the relevant literature. The opening chapter begins with a question that brings home the importance of economic analysis even if one is predisposed to discount the influence of premeditated cost-benefit calculations on putative criminals. Winter asks, Would you want to live in a society where murders never happen? Winter’s own answer is a strong no: he would “much prefer” (emphasis his) to live in a society in which murders occur. The benefits of a murder-free society would be far outweighed by two costs: the cost—in terms of infringements on freedom and privacy—of an all-out effort to stop homicides and the cost—in terms of diverted resources—to other important societal goals if such an effort were made. Echoing famed economics scholar Gary Becker, Winter suggests that a full cost-benefit calculation may even require factoring in the benefit of crime to the criminal. Overdeterrence can be just as costly as underdeterrence.
For a neophyte to economic analysis like me (and one who is predisposed to distrust it), The Economics of Crime is a useful introduction to the assumptions, methodologies and conclusions of those who look at crime through the cost-benefit lens. Winter makes clear that, as with any empirical science, for each and every study about the economics of crime there is often an equal and opposite study.
Take the debate about whether the certainty of punishment has a greater deterrent impact than the severity of punishment. Most studies find that fear of apprehension is a greater disincentive to crime commission than either the prospect of conviction or the enhancement of sentences. Even so, Becker famously argued that if apprehending criminals can only be achieved through expenditure of significant resources on the police and if punishment can be achieved via a resource-producing system of fines calibrated according to ability to pay, more emphasis might be placed on enhancing the punishment side of the equation, specifically through a well-calibrated fine structure. In response, Winter points out, both those with no ability to pay and those with an infinite ability to do so would probably not be significantly deterred by such a regime; he also notes that a fine-based system can be a temptation to corruption (as illustrated by government abuse of forfeiture laws).
More generally, while numerous studies find that changes in sentence duration have a deterrent impact, other studies, like Anderson’s, find to the contrary. Some studies find that the incapacitative effect of prison yields a net social gain, despite the expense of the prison system, but other studies indicate that incarceration increases post-release recidivism. And so on. I found this summary of the research on the usefulness of police, prisons, and manipulation of sentence lengths particularly intriguing in light of today’s rejuvenated police and prison abolition movement.
Using simple language and examples and avoiding the confusing and often redundant equations one often finds in economic literature, Winter walks the reader through a number of other well-known controversies in criminal law. He has sections or chapters canvassing research on the effectiveness of shaming penalties, the imprisonment of white collar criminals, the privatization of prisons, alternatives to prison, three-strikes laws, the death penalty, the legalization of drugs and the criminalization of addiction, and private efforts to prevent crime (such as purchases of Lojacks, personal guns, and bars on windows). Permeating the book are studies on the extent to which various policies are racially biased or produce racially disparate effects. There is also a chapter making a bow to the expansion of economic analysis beyond the rational-actor model to “behavioral economics” theories that take into account individual differences such as risk aversion/preference, implicit bias, gratification impatience and the like. For someone looking for an entrée into economic reasoning as it relates to crime, this slim volume (133 pages) is well worth a look.
May 31, 2023 Mary Fan
One of the pleasures of chairing faculty hiring is seeing fresh scholarly stars launching their law professor career. During the intense whirl of hiring season, new entrants to law teaching author much of my law review article reading load. One of the stellar scholars with an exciting trajectory is Farhang Heydari. In his recent article, The Private Role in Public Safety, Heydari writes about private influences in policing with the authority of experience working with police officials and litigating civil rights and liberties cases. Heydari is Executive Director at the Policing Project, founded by preeminent policing scholar Barry Friedman to strengthen democratic governance of policing.
As an example of how private enticements impact policing, consider the Baltimore Police Department’s total aerial surveillance program. A private company, Persistent Surveillance Systems, contracted with the Baltimore Police Department to use three planes mounted with high-resolution cameras to record activities throughout 90 percent of the city. A Texas billionaire promised to pay for the $3.7 million pilot program. The grassroots group Leaders of a Beautiful Struggle, represented by the ACLU, challenged the overflight program, alleging violations of the rights to free association under the First Amendment, and privacy against dragnet warrantless government surveillance under the Fourth Amendment.
New scholarship at the intersection of policing, technology, and democratic governance theory is essential given the social import of the intimate relationships between private actors and police departments. Scholars with experience in the field are particularly well-situated to garner credibility, and to design workable proposals for regulation. Heydari’s experience is stellar. Because of his policing technology policy work, Government Technology named Heydari one of the Top 25 Doers, Dreamers, and Drivers in 2021.
Experience gives Heydari a wise, balanced voice sorely needed in a fractious arena oft-filled with Manichean polemics. Privatization is what gave rise to the private prison-industrial complex and accountability challenges, Heydari observes. How do we make sense of these contrasting calls to privatize and yet also curtail privatization of the criminal system? Even more importantly, how can people seeking to address the ailments of the current system productively harness and govern the influence of private actors?
Heydari explains that private influences pervade the criminal system, from private individuals reporting and thereby steering police action, to the use of vast volumes of privately held data, such as cell phone location information. His conceptualization of private influence is at once broader and more pragmatic than what is traditionally conceived as privatization, which refers to the outsourcing of public-sector duties to private actors. Even more interestingly, Heydari calls attention to the influence of private philanthropy or grants of private-sector resources upon police departments. Such private inflows of resources tempt police departments to deploy policing surveillance strategies or technology with limited public oversight.
My motivating example of the Baltimore Aerial Surveillance Systems program shows how private funding strategies can evade democratic governance and oversight. As reported by the Baltimore Sun, the Baltimore Police Department kept the funding for the aerial surveillance program secret using a private foundation that manages charitable funds for police. Not even the private foundation’s director knew the purpose of the money passed through his foundation for the aerial surveillance program.
In his salutary, balanced style, Heydari writes that private influences on policing are pervasive and unavoidable, and have positive as well as negative potential. For example, private community-based violence prevention organizations can provide fresh harm reduction approaches. Moreover, public providers of privatized services can pose challenges to regulation that are similar to those caused by private actors. The issue is one of effective democratic governance rather than whether an actor is public-sector or private, Heydari argues.
The key is how to regulate the impact of private influences to maximize benefits and reduce harms. Heydari advocates for a “parity-focused” regulatory strategy that reduces harms, whether generated by public or private actors. Heydari’s parity lens enables envisioning an array of legislative reforms. For example, he suggests that regulators require the entity that approves law enforcement budgets also approve all private donations above a certain threshold. He suggests applying open records laws to private contractors hired with funds held by, or donated to, the police.
While highlighting the promise of community-based violence prevention organizations, Heydari also cautions against allowing such organizations to operate without adequate governance. The claim of representing the community can efface real and important differences in opinion among affected community members, Heydari observes. Governance and transparency are important to ensure democratic accountability of these community-based organizations.
Heydari argues that the Supreme Court’s decision in Carpenter v. United States moves toward a parity-focused vision by requiring a warrant for location tracking via privately held cell-site location data obtained by the government. This reading of Carpenter as advancing private-public parity is intriguing yet puzzling because Carpenter adheres to the requirement of government action. The warrant requirement comes because police want to use the cell site location data, not because a private actor gathered it. Google is not subject to the Fourth Amendment when it tracks our movements pervasively for its private purposes, the way that government actors are. Carpenter revises Fourth Amendment third-party exposure doctrine, which usually refuses to recognize reasonable expectations of privacy in information exposed to third parties. Carpenter still requires government action, however. Private gathering and use of information from ubiquitous tracking is still unregulated by the Fourth Amendment unless and until the government seeks to obtain and use the information.
Heydari wisely acknowledges that perfect equivalence between public and private actors in policing is impracticable and undesirable. So how would he mediate these differences in constitutional criminal procedure doctrine, which currently focuses on government action, as well as legislation? In future work, it would be intriguing to see him wrestle with whether and how he would apply his parity approach to reshape constitutional criminal procedure doctrine as well as legislative action. One of the exciting aspects of reading the work of a person poised to enter law teaching is knowing that such tantalizing ideas and open questions will be addressed in a growing body of important work to come.
May 2, 2023 Jonathan Simon
In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.
So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations.
Indeed, in what is one of the most important contributions of the article, Professor Weisburd and a group of students have conducted a national survey of rules governing all manner of alternatives to incarceration such as probation, drug courts, or house arrest. What they find is a world of almost limitless intrusion by the state into some of the most consequential and private decisions of a citizen. These intrusions include mandatory drug treatment programs that compel participation in religious activities. They also include restrictions on individual choices concerning with whom to associate, with whom to become intimate, and how to parent. Because the reality of prison is so bad in America (and has been associated with a cancellation of constitutional rights) courts often simply assume that the state can cancel whatever rights it wants for those it leaves outside of a cage. But in their own way, these limitations on basic elements of equal citizenship may be even more disempowering and stigmatizing for those who appear otherwise “free”.
If we did not segregate constitutional law and criminal procedure in our academic curriculums (an important critique raised by Weisburd) more students would surely assume that when the state seeks to interfere with a fundamental right like marriage or family, it would have to meet the usual terms for evaluating such interferences, i.e., “strict scrutiny”. The restrictions would have to be narrowly tailored to achieve compelling state interests. Of course, given the vicissitudes of imprisonment, as well some of the circumstances surrounding alternatives to incarceration, the government might often be able to establish that; but the point is they would have to do so. However, the only time the Supreme Court has squarely addressed the question they held that simple rational basis was enough. Against this thin doctrinal background Professor Weisburd provides a comprehensive examination of the existing jurisprudence as well as promising innovations like the federal law protecting religious liberty in prisons enacted in the early 2000s and establishing strict scrutiny.
Roughly two coherent schools of constitutional thought can be traced here. One is that conviction for a crime, or at least a felony, more or less extinguishes the convicted person’s rights. They become civilly dead, a virtual slave of the state. This perspective has its roots in the tradition of capital punishment for felony and echoes in the 13th Amendment’s infamous tolerance for involuntary servitude for a crime. Its leading modern expounders are Justice Thomas and the late Justice Scalia. In this view, which may now represent a majority view on the very conservative Court, only measures that meet the 8th Amendment definition of “cruel and unusual” are forbidden to the state in punishing crime (and that restriction is very limited indeed).
The other approach, embodied mostly in dissents by liberal Justices such as the late Justices Stevens and Brennan, would hold that all constitutional rights are retained unless specifically incompatible with the imposition of the core punishment (like the right to liberty and incarceration). This view, which holds out human dignity as the animating principle behind the entire document, has reached its highest legal expression thus far in the European Community’s Human Rights jurisprudence. Justice Kennedy, whose decisions on both the 8th Amendment and Due Process often seemed informed by human dignity is gone today and his replacements seem more likely to follow the Scalia-Thomas approach.
While Professor Weisburd’s legal argument for broad enforcement of constitutional and other rights, in both sanctions that are alternatives to incarceration and incarceration itself, is unlikely to be be welcomed in the Supreme Court in the near term, it is a tool kit that advocates for individuals and communities burdened by this vast and autocratic system should eagerly explore. Some of the arguments will find takers in courts at both state and federal levels given the overall paucity of decisions. Others can be taken to legislatures and, where possible, voter initiatives. Perhaps most importantly, by making visible the shocking contrast between the constitutional democracy we purport to live in, and a carceral world sheltered only by one clause in the Constitution, Professor Weisburd’s analysis reminds how deeply punitive and thinly legal our institutions of punishment are, from courts, to electronic bracelets, to prisons.
Apr 7, 2023 Maybell Romero
In the opening of chapter two of Punishing Places: The Geography of Mass Imprisonment, Jessica T. Simes recounts the story of a group that dubbed themselves The Think Tank. This group, started in 1979 and comprised of incarcerated men at Green Haven prison in upstate New York, began conducting a study that would be seminal to understanding the connection between communities and prisons, and profoundly influential in understanding mass incarceration as an urban phenomenon. Using state assembly districts as the basis for their study, The Think Tank found that “approximately three-quarters of all incarcerated people in the late 1970s and 1980s in New York State hailed from Harlem, Manhattan’s Lower East Side, the South Bronx, South Jamaica, Bedford-Stuyvesant, Brownsville, and East New York in Brooklyn.” Understandably, this groundbreaking study lead sociologists, criminologists, and those who are influenced by their work to surmise that mass incarceration in the United States is an urban issue with an urban genesis. In Punishing Places, however, Simes aims to take “the Think Tank’s insights seriously” by “going wherever the data take us” to new views of mass incarceration and its relationship to communities outside of urban spaces.
Professor Simes uses data from the Massachusetts Department of Correction (MADOC) and interviews with social service providers (with several other sources, as well) to reveal a new pattern of mass incarceration that has shifted away from urban centers to small cities and suburbs, while continuing to disproportionately burden not just Black and Latino people who are incarcerated, but Black and Latino neighborhoods as well. Before diving into the data, however, Simes begins by describing the two prevailing perspectives in criminology and (urban) sociology that attempt to explain, now erroneously, why incarceration rates are highest in segregated urban neighborhoods. The social control perspective focuses on policing strategies and their fixation on the poor and minorities irrespective of crimes committed, while the urban inequality perspective takes the view that “rates of incarceration and violence are highest in neighborhoods of concentrated disadvantage.” Simes then attempts to unify both theories while also adding a new, spatial awareness beyond the usual focus on large cities. She explains that a unified theory combining social control with a more inclusive spatial awareness of inequality would better account for the movement of the concentration of mass imprisonment from urban neighborhoods to small cities.
Simes’ project is admirable and ambitious. She provides a clear primer for those unfamiliar with the study of nonmetropolitan geographies and sociologies before delving more deeply into data from MADOC. The data show that small cities “have a 22 percent higher prison admission rate than Boston census tracts,” and that eleven Massachusetts cities comprising less than “a quarter of the total state population, accounted for over half of prison admissions” from 2009-2017. These cities are, largely, majority-minority and were once prosperous manufacturing communities that have fallen on tough times. Simes’ account of the shared characteristics of these communities makes clear that ignoring small cities in the contemporary study of mass incarceration relies on outdated assumptions, and generates an incomplete understanding of the phenomenon. Using MADOC data and other county level data throughout the United States, Professor Simes comes to a persuasive conclusion: “[M]ass incarceration is better characterized as a broad mode of governance affecting communities beyond large metropolitan cities.” Due to a greater punitiveness in the criminal legal system, the devastating effects of mass incarceration in small cities exacerbates other forms of disadvantage caused by economic decline and democratic shifts, making small cities punishing places to live.
Professor Simes acknowledges that legal and political scholars have done some work theorizing why incarceration rates have recently skyrocketed in small cities, but argues that more research is necessary to explain the social and spatial causes of this increase. While scholarship has focused on the fact that “criminalization and punishment are local,” and that the unique political conditions that arise in small cities are “ripe for harsh punishment,” Simes expands on these theories. She argues that small cities are subject to “overwhelming policy neglect.” She urges greater attention to both socioeconomic conditions of these cities, and to the policies designed to address those conditions. She also observes that the racism of the criminal legal system does not change just because it now imprisons those from small cities rather than minority neighborhoods in urban places; rather, it remains “remarkably consistent,” especially since neighborhoods in small cities are segregated in similar ways as large ones.
In exploring the policy neglect faced by small cities, Simes offers powerful vignettes from interviews she and a research assistant conducted with social service providers in small Massachusetts cities. Many of these interviews emphasized the difficulties faced by small city residents facing joblessness, addiction, poverty, and housing insecurity. Transportation, or a lack thereof, frequently derails efforts to secure employment or access recovery services. In one example, a representative of a job training center explained that without a car, one might need to take a bus from a small city to a larger one with more plentiful employment opportunities, but that bus commute might take four hours each direction, and be cost-prohibitive. Another service provider offering reentry services shared that a woman attempting to travel from the Springfield area to Boston for court-ordered addiction treatment suffered a heart attack while attempting to reach Boston using the service provider’s transportation service. Tragically, the two-and-a-half-hour trip proved fatal. While these interviews make the data come alive, insights from social service clients would have offered an even more direct account of the challenges faced by those living in punishing places. Simes details the policy neglect that small cities face when ignored and passed over for large cities, as well as the cumulative effects of the lack of both housing and employment opportunities. Including direct accounts from individuals battling these obstacles could have offered an even clearer lens through which to understand these problems.
Punishing Places also shows that even as the centers of mass incarceration have shifted from large cities to small ones, that does not mean that it no longer functions in a fundamentally racist fashion. Anyone who has studied small cities and nonurban spaces is familiar with the pervasive stereotype that communities outside large urban centers are primarily white and strongly conservative. Small cities also face the specter of extreme racial segregation. Simes argues that place itself and the disadvantages found in small cities drives mass incarceration not just by harming those who are imprisoned, but the communities who are left behind, too.
Simes introduces the concept of “communities of pervasive incarceration,” exhorting the reader to see not just the context and cumulative effects of mass incarceration, but also that segregation is “the missing stage in explaining the persistence of racial disparities” that are so persistent. Punishing Places challenges scholars – and anyone who cares about the racism of mass incarceration – to stop considering only large-scale numbers, and to get a granular look at neighborhoods in order to fully understand the harms that are inflicted on communities of pervasive incarceration. Using MADOC data, Simes demonstrates that even as the centers of mass incarceration have moved to small cities, massive racial disproportionalities still exist for those living in Black and Latino neighborhoods. Simes chooses to separate Latinos and their neighborhoods from those of Black and White communities, and this choice could use explanation. “Latinx” of course, is an ethnicity and not a race and, contrary to what has long been believed in the United States, Latinos can be Black and/or White, as well as other races. So, what makes for a “Latino” neighborhood when such neighborhoods are often multiracial? Are some Latinx people not being counted as Latinx if they live in a neighborhood that is primarily Black or White otherwise? From what is presented in Punishing Places, it is hard to say.
Simes concludes by introducing novel measures and understandings of mass incarceration including those of community loss, excess punishment, and vulnerability to intense formal social control before suggesting further avenues of research. One of the most exciting aspects of Punishing Places is, however, how it confronts one of the core guiding ethics of social science and sociology: the “value-free ideal” that births a professional posturing of remaining observational and neutral. Simes convincingly argues that values and science need not exist in a false tension. Rather, “embracing our normative commitments presents new opportunities to harness knowledge and conduct moral investigations often relegated to the all too brief conclusions” of scholarly works. It is a provocative and refreshing statement to see in a work of sociology, and Simes is clear that her book seeks to draw attention to the challenges of those in communities of pervasive incarceration, and to lessen the harm they suffer, through her use of more overtly normative sociology. While this framework should be clear to the reader by the time they reach its description near the end of the book, featuring it front and center would have made it more impactful and would give the reader greater opportunity to see how important a perspective it is while exploring the new geographies of punishing places that Simes reveals.
Feb 17, 2023 Eric J. Miller
Lahny Silva,
The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, 82
Maryland L. Rev. _ (forthcoming 2023), available at
SSRN.
It is a truism that, in the United States, powers and resources—often called “capabilities”—are not spread equally across people and groups. It is equally plain that individual vulnerabilities—incapabilities (or disabilities, broadly conceived)—become magnified when that individual is a member of a group targeted for special attention through criminal processes. For the most part, recent attention has been directed at the ways in which policing and imprisonment enforces oppression on the basis of group membership, rather than as magnifying individual vulnerabilities. Perhaps that explains why one of the blind spots of much criminal procedure writing and the current abolition movement are those carceral institutions, including the institution of probation, that exist outside the police and the prison. Centering probation reveals some of the ways in which individual powers and resources are disrupted through both group membership and institutional oppression.
One of the few places in which the issues surrounding probation, parole, and supervised release get something of an airing is in the context of low-level criminal courts as described by some of the recent “misdemeanor” scholars, and has been described for years more by problem-solving-court scholars (of whom Professor Lahny Silva is one). Professor Silva’s more recent articles have more directly critiqued the rules and practices that govern federal probation and reentry in the context of the War on Drugs. In The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, Professor Lahny Silva distinguishes between approaches that treat probation as a form of risk management and as a form of resource management.
Risk management is a form of social control that limits access to social connections and so disempowers people under supervised release from having access to people and places that are associated with offending. Resource management is a form of social facilitation that expands access to social connections and so empowers people under supervision. Professor Silva introduces and elaborates on a desistance model of probation as one form of resource management. Desistance models recognize that social connectivity is essential to the sort of robust relationships and resources necessary to prevent further contacts with the criminal process. Professor Silva’s article provides a brief history of probation and supervised release, follows up with a useful overview of contemporary probation theory, and then argues that probation would be better organized as a form of individually targeted resource management rather than as a form group targeted risk management.
The problem with risk is that it is group-based rather than individual-based and so does not tell us what any particular person will, in fact, do. As Professor Silva notes, “the locus of concern [under the risk model] is not the individual probationer…[but rather] protection of the public.” Risk analysis identifies a population of individuals and separates them into, effectively, two groups: the bad-behavior-group comprised of the percentage of the population who will actually engage the proscribed conduct; and the good-behavior-group comprised of the percentage of the population who will not.
“The risk principle.” Professor Silva notes, “assumes the risk of reoffending is predictable and the intensity of the intervention treatment should correspond to the supervisee’s risk level.” In other words, risk management justifies subjecting everyone in the relevant population to supervision and what the probation theorists call “targeted interventions” if that population as a whole manifests sufficient quality of anti-social behavior and a sufficient quantity of people are likely to fall into the bad-behavior-group. In addition, the risk analysis may justify the type of supervision imposed based on this quantity and quality of risk. If the type of bad behavior to be prevented is sufficiently serious, that may justify significant restrictions on liberty, including some forms of brief or lengthy, intermittent or permanent, home or institutional detention. A greater perceived risk also justifies lowering the triggering conditions for supervision to include more people within the carceral net, so that supervision will apply not only when there is a large bad-behavior-group relative to the population, but when there is a much lower one for more serious preventable conduct.
Accordingly, the programs provided under the risk-management model—what is currently called the “risk-needs-response” model—are only those programs “needed” to stop the bad-behavior subgroup from engaging in that behavior, usually by cutting them off from various social resources: the people and places regarded as triggering the group’s bad behavior. These programs range from alcoholics anonymous to ankle monitors and anything in between. However, these “needed” programs are not, Silva argues, individualized “responses.” So the “need” addressed is actually group need, not individualized need. If sufficient members of the group are either good-behaviors or badly served by the programs, those people will not respond well, or at all.
Professor Silva’s argument is that, to minimize future contacts between people under surveillance and the carceral system of policing and prosecution, probation officers need to address each individual person’s capabilities to desist from criminal activity. She focuses on what is called in probation circles the “good life” model, which suggests that crime is a response to structural impediments people on probation face in attempting to pursue life, liberty, and happiness (and a bunch of other basic values).
Specific people, with identifiable families, friends, homes (or lack thereof), health issues, employment difficulties, and so on, may lack the particular physical and psychological powers. or social resources or structures (what are often called “capabilities”) necessary to facilitate desistance from crime. Professor Silva explains that the role of probation officers is to create a relationship in which the parole officer provides leadership and support for the person on supervised release to develop various capacities or capabilities, often by connecting them with various social resources. Some of these resources are fairly basic: however, given structural impediments, many vulnerable people in socially oppressed groups may lack these resources.
Professor Silva’s account of desistance provides some interesting ways to think about individual and group vulnerability and oppression. We can think of desistance as a combination of resources and powers, where these powers are driven by various social circumstances that enable things like connection with support networks, mental fortitude, and “hope.” Hope, Professor Silva notes, is the condition of feeling empowered to change one’s personal circumstances. Desistance works when the person under supervision feels that the supervision system treats them fairly, even if the larger criminal process or political and social systems do not. Fair treatment gives the person under supervision hope that they can exit the cycle of policing, probation, and punishment.
It is worth pushing Professor Silva’s desistance model a little further, and considering some of the structural factors that make exiting the carceral cycle so difficult. Consider, for example, hopelessness as the feeling or believing that one that one lacks the power to change one’s own circumstances. It is worth noting that, given structural oppression, this belief can be more or less correct. The impediments to personal change are raced and classed, and hopelessness may just be what happens to people who lack robust social systems able to cope with life’s most momentous crises.
We could then connect Professor Silva’s account of risk management with Forrest Stuart’s notion of “therapeutic policing,” in which law enforcement officials regard individuals as possessing certain powers or capabilities—of making good choices—and of possessing certain resources—of having good choices to make. But for vulnerable people in marginalized groups there may be no resources—no good choices to make—and people may be realistic about their social position—hopeless, given their circumstances. Their position in the criminal process as compared to others is thus a matter of resources and luck, rather than choice. They are responsible in the limited set of ways of having been caught up in the policing net. What sort of realistic agency can we offer people in these circumstances? Could hope focus upon finding power within communities of resistance?
Professor Silva provides some practical answers to these questions in another recent article, Reaching for Reentry: Indiana University Robert H. Mckinney School of Law’s Contribution to the Reentry Movement, her account of the Re-Entry and Community Help program she runs for people under supervised release. But for those of us who simply seek to understand the ways in which the criminal process churns through the vulnerable and marginalized, Professor Silva’s Trap Chronicles Vol. 2 article makes visible those rarely glimpsed filaments of the carceral net.
Cite as: Eric J. Miller,
Trapped in the Probation Net, JOTWELL
(February 17, 2023) (reviewing Lahny Silva,
The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, 82
Maryland L. Rev. _ (forthcoming 2023), available at SSRN),
https://crim.jotwell.com/trapped-in-the-probation-net/.
Jan 17, 2023 Elena Larrauri
All scholars that work on prison law develop a sense of dismay when they see how little law can achieve in transforming prisons into more “survivable” institutions. Even when the law is “good,” it usually is too broad, leaving an ample space of discretion to the prison administration. Judges, in turn, tend to defer to the exercise of this discretion in ways that overwhelmingly favor the interests of the institution to the detriment of the prisoners. Therefore, if one looks at the intervention of the judiciary, the sense of dismay does not wither away. The ‘activism’ of the Courts seems to produce limited changes. Be it the American Supreme Court, or the European Court of Human Rights, the fact is that the courts accept that a certain degree of humiliation is acceptable in prison, and “the [European] Court still applies a relatively high threshold by accepting that every detention holds an ‘inherent element of humiliation’ and an ‘unavoidable level of suffering’… so we can only induce from the Courts’ case law which kind of humiliation or suffering it finds ‘acceptable’ and which not.”
And yet, despite our knowledge of the limited capacity of law and the judiciary to produce relevant changes, most legal scholars that occupy themselves with prisons tend to have some trust, some hope, however faint, that law can achieve something. For one, because ‘sociology without law is toothless’ (and law without sociology is incapable of affecting change) (Livingstone et al., 2008). And on the other hand, because as Justin Driver and Emma Kaufman state in their outstanding article The Incoherence of Prison Law, we cannot abandon legal analysis of prison because:
“Written regulations shape nearly every facet of prison life, from when prisoners pray and how long they can grow their beards to when they can see their children [and therefore] critics of American criminal justice cannot ignore prison law.” (P. 520.)
Their paper makes an excellent summary of the reasons why we should concern ourselves with prison law.
First, it traces the emergence of prison law in United States through the analysis of the cases that were brought to the courts, mainly in the second half of the twentieth century. The authors explain how the intervention of the courts was important in the establishment of rights for prisoners. They also explain how, in the 1980s, after a decade of victories, came a period of retrenchment in the battle for substantive rights and a shift to the defense of procedural rights. This reaffirmed the hierarchy of the judiciary over prison administrators more than it altered the substantive conditions of life in prison.
For me, this is a fascinating story because it reminds us that each right inside prison has had to be fought for and won. In addition, it renews our interest in examining what the courts are doing now. Judges tend not to want to become involved in prison administration, and this means that judicial oversight tends to be formal and deferential. However, judges still have a role regarding prisons. As Driver and Kaufman argue, they have the power to develop legal standards for the exercise of certain rights (like prison security classifications, visitation rights) and they could engage in vigorous prison supervision if they recover their role “as guardians of the people’s federal rights [against unconstitutional action].”
The authors also bemoan the lack of inclusion of prison law in law school curricula. I wholeheartedly agree. One cannot but wonder, for example, how proportionality in sentencing is to be achieved without taking into consideration actual prison conditions.
“It is a pity indeed that the judge who puts a man in the penitentiary does not know what a penitentiary is.”
The second reason why I find this paper well worth reading is for its argument in favor of constitutional prison law as an identifiable subspeciality of constitutional law. The paper makes clear that the rights that are in the Constitution are also applicable in prisons. The authors carefully analyze the use of the Safley test by the American courts to decide if the restrictions applied to a certain right are adequate, and they criticize this test for setting a very low bar and being “transsubstantive” (meaning this test is applied generally to examine all restrictions). They make a plea for a more nuanced analysis of prisoners’ constitutional rights.
The authors call for a more refined constitutional inquiry, not limited to examination of the Eighth Amendment, and for a “right specific analysis” to discuss which rights are forfeited, diminished, enjoyed in full, or which rights arise and are newly acquired because of the peculiar position of the prisoner. This shifts the discussion from the institution a prisoner is in and their status as prisoner, to the right they want to exercise.
This analysis is also relevant for other countries involved in societal discussions over limitations on rights. Although the European Court of Human Rights rejected the doctrine that prisoners were subject to “inherent limitations” on their rights by the fact of their imprisonment, this idea is persistent. The discussion that some rights are taken by ‘necessary implication’ of his imprisonment or, in continental Europe, by virtue of the ‘special relationship’ between the prisoner and the administration evade in both cases a careful consideration of the specific justification for the restriction of a certain right inside prison.
Third, and last, the paper poses the example of the flawed assumptions that are present in prison judgments. These decisions are full of assumptions: about prison violence, prisoners’ literacy, privacy, and rehabilitation. According to the authors, mistaken propositions give rise to inconsistent judgments. To address the problem, the authors call for greater judicial reliance upon empirical research. Given the amount of sociological research and knowledge about prison conditions, this could lead to more informed judgments.
Admittedly, as the authors make clear in their review, ignorance of empirical data is itself deployed selectively, and mainly operates in defense of the prison administrator’s position. Nevertheless, in some cases, victories are still possible.
Cite as: Elena Larrauri,
Keep On Pushing…, JOTWELL
(January 17, 2023) (reviewing Justin Driver & Emma Kaufman,
The Incoherence of Prison Law, 135
Harv. L. Rev. 515 (2021)),
https://crim.jotwell.com/keep-on-pushing/.
