September 1, 2012
Kamin & Wald on Prosecution of Medical Marijuana Lawyers
Sam Kamin and Eli Wald (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Medical Marijuana Lawyers: Crusaders or Outcasts? on SSRN. Here is the abstract:
While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with these and other legal issues. Lawyers incorporate businesses, they write leases and employment agreements, they help navigate the labyrinth of regulatory compliance and ensure that taxes are being paid promptly and accurately.
This usual relationship is obviously and necessarily complicated by the fact that the manufacture and sale of marijuana remains a federal offense punishable by up to twenty-five years in prison. While a state may choose to de-criminalize, medicalize, or even legalize marijuana, it does not have the power to undo the federal prohibition of the drug. Thus, an attorney engaged by a marijuana practitioner to do the work that lawyers traditionally do for businesses necessarily puts herself at risk. Because all lawyers have an obligation not to knowingly assist criminal conduct – and because their clients’ conduct is by definition criminal – attorneys who do any legal work for MMJ clients face the possibility of both significant ethical and criminal consequences for their actions.
In this essay, we discuss the ethical and criminal provisions that impact a lawyer’s representation of those working in the MMJ industry. We show that under traditional readings of both criminal law and the Model Rules of Professional Responsibility, an attorney is prohibited from providing most kinds of legal assistance to a medical marijuana client. We argue, however that a literal reading of the rules would have serious negative repercussions in those states that have enacted MMJ regulations. Without the participation of attorneys, important state policies regarding access to medicine and the allocation of criminal justice resources will be frustrated; where a state has chosen to regulate marijuana as medicine, lawyers are a necessary part of the implementation of that policy decision.
There are important limits to this representation, however. Some of these limits are easy to define, while others are far more amorphous. We borrow from the law of accomplice and co-conspirator liability to give shape to the line between permitted and forbidden legal help. We argue that so long as lawyers merely provide the same services on the same terms to their MMJ clients that they do to their other clients, they violate neither their ethical obligations nor the prohibitions of the criminal law.
Using specific examples, we give much-needed guidance to attorneys engaged in this emerging and fraught area of practice. Our proposed reading of Rule 1.2(d) establishes that lawyers may generally help MMJ clients address the majority of their legal needs; attorneys may defend MMJ clients charged with violations of the Controlled Substances Act, may serve as lobbyists in challenging federal law and can advise clients about the state of the law. Lawyers may also generally help these clients with compliance work – such as filing for a license to own and operate a medical marijuana dispensary – and may negotiate leases, draft contracts, and advise clients about employment matters. In most instances, we argue, such conduct will not violate Rule 1.2(d) at all because lawyers lack the intent necessary for assistance of criminal activity. In those situations where lawyers’ conduct does violate Rule 1.2(d), we argue, there may nonetheless be arguments for providing legal services to MMJ practitioners, though lawyers proceed here at their peril.
August 31, 2012
Cain on Presumed Guilt
It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not. By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict. The Supreme Court has heard this argument before and rejected it. It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime. Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases. This article will explain why that is so.
Mungan on Escalating Punishment Schemes
Murat C. Mungan (Florida State University - College of Law) has posted A Behavioral Justification for Escalating Punishment Schemes on SSRN. Here is the abstract:
The standard two-period law enforcement model is considered in a setting where individuals rarely lose self-control or commit crime without first comparing expected costs and benefits. Where escalating punishment schemes are present, there is an inherent value in keeping a clean criminal record; a person with a record may unintentionally become a repeat offender if he fails to exert self-control, and be punished more severely. If the punishment for repeat offenders is sufficiently high, one may rationally forgo the opportunity of committing a profitable crime today to avoid being sanctioned as a repeat offender in the future. Therefore, partial deterrence can be achieved at a very low cost through the use of escalating penalties, providing a behavioral justification for punishing repeat offenders more severely.
Henderson on ABA Standards on Law Enforcement Access to Third Party Records
Stephen E. Henderson (University of Oklahoma College of Law) has posted American Bar Association Criminal Justice Standards on Law Enforcement Access to Third Party Records on SSRN. Here is the abstract:
Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when law enforcement access to medical records, cell site location information, and myriad other information should be permissible, and these Standards provide a framework via which they can bring greater consistency to existing law, and, where necessary, frame new law that accounts for changing technologies and social norms, the needs of law enforcement, and the interests of privacy, freedom of expression, and social participation.
I serve as Reporter for the Standards, extensive Commentary to which is currently being formulated. An explanatory Report can be found by Googling "American Bar Association criminal justice standards" and following the link to these Standards.
August 30, 2012
"Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns?"
From Orin Kerr at The Volokh Conspiracy:
This is a first in a series of posts on the issues I raised in an amicus brief I filed in the case. In my view, the Fifth Circuit must reverse because the Fourth Amendment issues in the case are not ripe and cannot be reached at this stage. There are no facts yet, so the courts can’t yet adjudicate the law. And magistrate judges cannot get around the absence of facts by just relabeling predictions of what might happen as “facts.” Rather, judicial rulings on Fourth Amendment questions have to follow the usual requirements of ripeness: There needs to be a real factual record formed in an adversarial setting on which courts can apply the very fact-specific principles of Fourth Amendment law.
"No Charges Filed on Harsh Tactics Used by the C.I.A."
From the New York Times:
Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.
. . .
The Justice Department did not say publicly which cases had been under investigation. But officials had previously confirmed the identities of the prisoners: Gul Rahman, suspected of being a militant, who died in 2002 after being shackled to a concrete wall in near-freezing temperatures at a secret C.I.A. prison in Afghanistan known as the Salt Pit; and Manadel al-Jamadi, who died in C.I.A. custody in 2003 at Abu Ghraib prison in Iraq, where his corpse was photographed packed in ice and wrapped in plastic.
"Missouri cell phone tracking law challenged"
Jurist has this story:
A Missouri law [HB 1108 materials] allowing police to track individuals' cell phones in emergencies was challenged in a federal lawsuit Monday claiming that the state law conflicts with federal law. The complaint [text, PDF], filed on behalf of a Bolivar resident, asserts that the Missouri law should be struck down under the supremacy clause of the US Constitution as it clashes with federal law. The Missouri lawrequires phone companies to help law enforcement agencies [AP report] in tracing cell phone signals of 911 callers or tracking a phone's location in emergency situations. The lawsuit seeks a restraining order or injunction prohibiting enforcement of the law.
Klick, MacDonald & Stratmann on Mobile Phones and Deterrence
Jonathan Klick (pictured), John MacDonald and Thomas Stratmann (University of Pennsylvania Law School , University of Pennsylvania and George Mason University - Buchanan Center Political Economy) have posted Mobile Phones and Crime Deterrence: An Underappreciated Link (Research Handbook on the Economics of Criminal Law, ed.: Alon Harel and Keith N. Hylton, August, 2012) on SSRN. Here is the abstract:
Between 1991 and 2001, crime rates dropped by about a third across all crime categories. We suggest that the introduction and growth of mobile phone technology may have contributed to the crime decline in the 1990s, specifically in the areas of rape and assault. Given that mobile phones increase surveillance and the risks of apprehension when committing crimes against strangers, an expansion of this technology would increase the costs of crime as perceived by forward-looking criminals. We use the available mobile phone data to show that there is a strongly negative association between mobile phones and violent crimes, although data limitations preclude us from being able to make any claims about causality. We show how the intuition about mobile phones providing crime deterrence fits in well with modern discussions in the crime literature regarding optimal policy and the expanding use of private security precautions in crime prevention.
Tumminello et al. on Criminal Specialization
Michele Tumminello , Christofer Edling , Fredrik Liljeros , Rosario N. Mantegna and Jerzy Sarnecki (Carnegie Mellon University - Department of Social and Decision Sciences , affiliation not provided to SSRN , Stockholm University - Department of Sociology , University of Palermo - Department of Physics and affiliation not provided to SSRN) have posted The Phenomenology of Specialization of Criminal Suspects on SSRN. Here is the abstract:
A criminal career can be either general, with the criminal commiting different types of crime, or specialized, with the criminal commiting a specific type of crime. A central problem in the study of crime specialization is to determine, from the perspective of the criminal, which crimes should be considered similar and which crimes should be considered distinct. We study a large set of Swedish suspects to empirically investigate generalist and specialist behavior in crime. We show that there is a large group of suspects who can be described as generalists. At the same time, we observe a non-trivial pattern of specialization across age and gender of suspects. Women are less prone to commit crimes of certain types, and, for instance, are more prone to specialize in crimes related to fraud. We also find evidence of temporal specialization of suspects. Older persons are more specialized than younger ones, and some crime types are preferentially committed by suspects of different ages.
August 29, 2012
Blinka on Character and Evidence Law
Daniel David Blinka (Marquette University Law School) has posted Character and the Protean Culture of Evidence Law on SSRN. Here is the abstract:
Although "character" is a core concept in evidence law, its meaning is unsettled and contentious. Character is often left undefined or generalized as a species of propensity evidence. Some vigorously debate whether it has a "moral" or "ethical" component. A recurring chord frames character as a psychological construct, criticizing current law for relying on "bad" science (trait theory) and hoping that neuroscience and psychology (interactionism?) will remedy the defect. Doctrinal disputes about character's meaning reveal telling fissures in evidence law that reflect a broader dissonance in contemporary society, particularly the fraying of liberalism and middle-class values since the 1960s and the culture wars that followed.
It is contended that character, like race, is a social and cultural construct. It is not grounded in science. Rather, character serves as a social score card of sorts, a crude, sometimes ugly, survey of what we think of others according to prevailing standards and values, some of which can be mean-spirited and maddeningly vague (e.g., he's a "bad" person). Character is part of our social fabric, permeating trials regardless of formal proof through the backdoors of demeanor and "background" evidence. It answers the essential question, "What kinds of people are involved here?"
Part I explores character's role in trials through 3 episodes, including one in which a prominent historian of science, also a juror in a murder case, excoriates the law's forlorn attempt to banish character from trials as "quixotic" and "perverse." Part II surveys current law, highlighting doctrinal ambiguity about "character" and leaks in the rules, especially "background" and demeanor, that permit character to operate sub rosa at trial.
Part III, the article's core, provides historical context. First, it contrasts the evolution of "character" from eighteenth-century conceptions of one's status in a hierarchical society to its central role in nineteenth-century liberalism, especially the ideals of "self-culture" and "balanced-character" that fueled the market economy and middle-class values. Second, as character evolved, so did its role at trial. Eighteenth-century trials were as much about determining character as in finding what happened. Paradoxically, while the nineteenth-century Victorians worshipped character development, they futilely attempted to lock it out of courtrooms as the modern trial was refashioned to curb juries' discretion in a search for "truth."
The Victorian model held together well into the twentieth century, when the social, political, and cultural disruptions of the 1960s and the later culture wars sharply challenged its brand of liberalism and middle-class values. (Part IV.) As the "Occupiers'" movement reminds us, today's polite academic disagreement over character's meaning reflect louder, messier conflicts over values; relegating character to science is not a solution, only a fruitless circumlocution. The article closes with some suggestions for embracing character as the crude social and cultural construct that it is, and always has been.
Anderson on Privacy as Intimacy
Heidi Reamer Anderson (Florida Coastal School of Law) has posted Plotting Privacy as Intimacy on SSRN. Here is the abstract:
This article introduces a two-dimensional Venn diagram on which to plot and evaluate a subset of privacy law decisions. In each plotted case, the general question was whether a person’s action should be afforded legal protection as private. How the court answered that question can be explained by examining whether the specific facts of the case fall within or outside two circles of intimacy. One circle represents the intimacy of the space in which the action occurs. This spatial intimacy is based primarily on the proximity of the identified space to a secluded area of the home. Within the other circle is bodily intimacy, which depends largely on the physically intimate nature of the act itself, i.e., how closely connected the act is to one’s own sexual or otherwise intimate body parts. When the facts of a single case are contained within the overlap of both circles of intimacy, legal privacy protection should be at its highest level.
Plotting cases based on spatial intimacy and bodily intimacy is useful in at least three ways. First, the plot helps to explain why certain cases are relatively easy for courts to decide and, conversely, why other cases are more difficult. Second, by focusing on the two types of intimacy, one can reconcile certain privacy decisions that initially appear contradictory. Third, the intimacy plot supports, and is supported by, recent scholarly calls to unify privacy law by focusing on “outrageousness” or “intrusiveness.” Ultimately, plotting privacy cases based on their intimacy-dependent facts illustrates how intimacy likely should be one of the core interests that privacy law should seek to protect.
August 28, 2012
"Posner on “Staleness” of Digital Evidence"Orin Kerr has this post at The Volokh Conspiracy, excerpting this Posner opinion suggesting that the ability to recover deleted files makes digital evidence particularly resistant to stale warrant challenges.
Strader on Skilling Reconsidered
Kelly Strader (Southwestern Law
School) has posted
Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services Fraud, and the Ill-Conceived 'Clean Up Government Act' (Fordham Urban Law Journal, Vol. 39, No. 2, 2011) on SSRN. Here is the abstract:
In United States v. Skilling, the United States Supreme Court narrowed the reach of the federal honest services fraud statute in order to avoid holding the statute unconstitutionally vague. The decision subjected the Court to substantial criticism, both from those who believe that the Court improperly engaged in legislation and those who believe that the Court should have deferred to Congress and left the statute in place. This article provides a soft defense of the Skilling decision, and a critique of Congress's proposed response to the decision. The article argues that the honest services statute indeed created a vague crime that failed to provide fair notice to potential defendants or to cabin prosecutors' discretion. But, in light of Congress's complicity in creating the overcriminalization and overfederalization crises, the Court probably took the best (or least bad) route in attempting to provide rational boundaries for honest services prosecutions. Finally, the article analyzes proposed legislation designed to overturn Skilling, concluding that the legislation would do nothing to solve the vagueness challenge that Skilling addressed.
Lacey on the Resurgence of Character
Nicola Lacey (University of Oxford - Faculty of Law) has posted The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation (In A Duff & S Green (eds), Philosophical Foundations of Criminal Law (OUP 2011) 151-178) on SSRN. Here is the abstract:
argues that the standard account of contemporary criminal responsibility as
founded in engaged agentic capacities may be in need of revision in at least two
respects. First, there is reason to doubt whether assumptions about
responsibility as founded in bad character have ever been evacuated from
criminal law doctrine in its path towards the refinement of a notion of
individual capacity-responsibility. Second, there is particular reason to think
that assumptions about character are enjoying a revival in contemporary English
(and American) criminal responsibility-attribution in phenomena such as
mandatory sentencing laws applying to particular categories of ‘dangerous’
offender; in phenomena such as sex offender notification requirements; in the
substantive law, particularly that dealing with terrorism; and in the operation
of evidential presumptions, detention rules and the renewed admissibility of
evidence of bad character. The paper offers a differentiated conceptual
framework for identifying and analysing the waxing and waning influence of
‘character’ in criminal law. Second, drawing on this model, it demonstrates the
variety of ways in which contemporary criminal law is marked by a resurgence of
‘character’, paying particular attention to the ways in which this resurgence
both resembles and differs from the reliance on ‘character’ typical of
pre-modern or 18th Century criminal justice. Third, it sketches an explanation
of why we have seen a resurgence of interest in and reliance on ideas of
character responsibility. And finally, it draws some conclusions from this
analysis for methodology in criminal law theory, and in particular for the
appropriateness of a framework which typically distinguishes between issues
going to substance and those going to procedure; between issues of doctrinal
structure and those of substantive scope; and between questions of
responsibility and questions of criminalisation and punishment more generally.
Gray & Citron on a Technology-Centered Approach to Quantitative Privacy
David C. Gray (pictured) and Danielle Keats Citron (University of Maryland-Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted A Technology-Centered Approach to Quantitative Privacy on SSRN. Here is the abstract:
We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in technologies that continuously track and aggregate information about our daily activities. The Fourth Amendment tipping point was marked this term by United States v. Jones. There, law enforcement officers used a GPS device attached to Jones’s car to follow his movements for four weeks. Although Jones was resolved on narrow grounds, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in each of the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the focus of considerable debate. Among the most compelling challenges are identifying its Fourth Amendment pedigree, describing a workable test for deciding how much information is enough to trigger Fourth Amendment interests, and explaining the doctrinal consequences. This Article takes up these challenges.
Our analysis and proposal draw upon insights from information privacy law. Although information privacy law and Fourth Amendment jurisprudence share a fundamental interest in protecting privacy interests, these conversations have been treated as theoretically and practically discrete. This Article ends that isolation and the mutual exceptionalism that it implies. As information privacy scholarship suggests, technology can permit government to know us in unprecedented and totalizing ways at great cost to personal development and democratic institutions. We argue that these concerns about panoptic surveillance lie at the heart of the Fourth Amendment as well. We therefore propose a technology-centered approach to measuring and protecting Fourth Amendment interests in quantitative privacy. As opposed to proposals for case-by-case assessments of information “mosaics,” which have so far dominated the debate, we argue that government access to technologies capable of facilitating broad programs of continuous and indiscriminate monitoring should be subject to the same Fourth Amendment limitations applied to physical searches.
August 27, 2012
"Critical Approaches to Int’l Criminal Law — Liverpool, England"Details on this conference are available at Legal Scholarship Blog.
"Federal judge approves DOJ settlement over Seattle police department"
A judge for the US District Court for the Western District of Washington[official website] on Friday tentatively approved a settlement agreement between the US Department of Justice (DOJ) and the City of Seattle relating to a DOJ investigation of the Seattle Police Department (SPD) [official websites]. Judge James Robart gave provisional approval for the agreement [joint motion, PDF], which will implement a package of reforms that overhauls police rules, especially on the use of force, and installs an independent monitor to oversee the department and make regular reports to the court and public.
Henning on Criminalizing Normal Adolescent Behavior in Communities of Color
Kristin N. Henning (Georgetown University Law Center) has posted Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case.
Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively and symbolically to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, challenges distorted notions of race and maturity, and holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires that prosecutors evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and more frequent crime among youth of color, prosecutors have a duty to evaluate that behavior in light of the current developmental research and respond to that conduct with the same developmentally appropriate options that are so often available to white youth.
As the gatekeepers of juvenile court jurisdiction, prosecutors should work with developmental experts, school officials, and other community representatives to develop and publish juvenile charging standards that reflect these goals. To increase transparency and encourage buy-in from the public, Professor Henning recommends that prosecutors track charging decisions according to race and geographic neighborhood and provide community representatives and other stakeholders with an opportunity to review those decisions for disparate impact. Finally, to ensure that communities of color are able to respond to adolescent offending without state intervention, Professor Henning contemplates a more expansive role for prosecutors who will engage and encourage school officials and community representatives to identify and develop adequate community-based, adolescent-appropriate alternatives to prosecution.
Simcock on Fourth Amendment Protections for Arrestees
Julian Simcock has posted Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
If there is an animating imperative behind the Supreme Court’s 1979 decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. The Fourth Amendment, the Court held, “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Decades later, the Supreme Court appears to have deviated from Bell’s moorings. In Florence v. Chosen Board of Freeholders, the Court examined the constitutionality of blanket search policies, which require that all arrestees be strip searched regardless of individualized suspicion or the nature of the offense. In a 5-4 ruling, the Court upheld such searches as constitutional. For the first time, the Court ruled that prisons seeking to implement strip search policies were free to dispense with any level of reasonable suspicion or tailored justification. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. In addition, the most unsettling issues posed by Florence — those which hint at the potential for future abuse — remain unresolved.
Morrison on Criminal Justice Responses to the Economic Crisis
( Caren Myers Morrison Georgia State University - College of Law) has posted Foreword: Criminal Justice Responses to the Economic Crisis (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:
The epidemic rate of incarceration in the United States, long documented, has come at significant financial and social cost. But the global financial crisis has forced legislators and government officials to face issues that they had previously been able to ignore: whether incarceration is the best use of resources to deal with non-violent offenders, whether former inmates should be sent back to prison for violations of conditions of their post-conviction release, rather than for new criminal activity, whether sentences should be so long that the prison population becomes increasingly geriatric. At the same time, taxpayers are beginning to realize that they are not always getting a decent return on their corrections dollar. Crime, and the fear of it, is no longer dominating the domestic agenda. And fiscal conservatives are edging out “tough on crime” rhetoric with proposals to be “smart on crime.”
The goal of the Symposium, held in Atlanta on January 27, 2012, was to bring together a number of scholars and practitioners to see how the moment might be leveraged to produce sustainable change. Cognizant of the ephemeral quality of reform that is solely cost-driven, the participants proposed a variety of solutions that could have staying power, even after the good times return. While controversial, large-scale reforms may remain out of reach, perhaps an accumulation of incremental changes might add up to an overall shift in focus, away from the punitive overreliance on incarceration, and towards a more just, evidence-based and cost-effective justice system.