February 18, 2013
Brooks on Stakeholder Sentencing
Thom Brooks (Durham University) has posted Stakeholder Sentencing (Julian V. Roberts and Jesper Ryberg (eds), Popular Punishment: On the Normative Significance of Public Opinion for Penal Theory, Oxford: Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Recent years have witnessed increasing interest in how to provide new avenues for incorporating a greater public voice in sentencing. This development is the product of a widely perceived growing crisis concerning the lack of public confidence in sentencing decisions. One important factor is negative media headlines that draw attention to cases that contribute to feeding a culture of sentencing disapproval by the public where punishments are believed to be undeservedly lenient. A second factor is the recognition that victims should have greater involvement in the criminal justice system, including sentencing decisions. But how might we improve public confidence and provide a greater voice for victims without sacrificing criminal justice in favour of mob rule?
These developments concerning the relation of public opinion and punishment raise several fundamental concerns. How much voice, if any, should the public have regarding sentencing decisions? Which institutional frameworks should be constructed to better incorporate public opinion without betraying our support for important penal principles and support for justice?
This chapter accepts the need to improve public confidence about sentencing through improving avenues for the public to posses a greater and better informed voice about sentencing decisions within clear parameters of justice. I will defend the idea of stakeholder sentencing: those who have a stake in penal outcomes should determine how they are decided. This idea supports an extension of restorative justice I will call punitive restoration where the achievement of restoration may include a more punitive element, including imprisonment. My argument is that the idea of stakeholder sentencing offers a compelling view about public opinion might be better incorporated into sentencing that promotes a coherent and unified account of how punishment might pursue multiple penal goals, including improving public confidence in sentencing.
Austin, Jacobson & Chettiar on Reducing Mass Incarceration
James Austin , Michael Jacobson and Inimai M. Chettiar (JFA Institute , Vera Institute of Justice and New York University School of Law) have posted How New York City Reduced Mass Incarceration: A Model for Change? on SSRN. Here is the abstract:
Over the last two decades, crime and violence plummeted dramatically in New York City. Beginning in the 1990s, the New York Police Department shifted its policing practices, implementing a “broken windows” policing strategy which has morphed into the now infamous “stop-and-frisk” practices. During this same time period, the entire incarcerated and correctional population of the City – the number of people in jails and prisons, and on probation and parole – dropped markedly. New York City sending fewer people into the justice system reduced mass incarceration in the entire state.
In this report, leading criminologists James Austin and Michael Jacobson take an empirical look at these powerful social changes and any interconnections. Examining data from 1985 to 2009, they conclude that New York City’s “broken windows” policy did something unexpected: it reduced the entire correctional population of the state. As the NYPD focused on low-level arrests, it devoted fewer resources to felony arrests. At the same time, a lowered crime rate – as an additional factor – meant that fewer people were committing felonies.
Hashimoto on the Equitable Heritage of Habeas
Erica J. Hashimoto (University of Georgia Law School) has posted Reclaiming the Equitable Heritage of Habeas on SSRN. Here is the abstract:
Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these five bars exhibit significant equitable characteristics. The only outlier is the Court’s retroactivity bar, which prohibits relief whenever an applicant relies on a new rule of constitutional procedure. Taking no account of the blamelessness of the applicant’s conduct or the nature of the claim, the law of retroactivity applies in a wooden fashion that is at odds with principles of equity.
The nonequitable nature of the retroactivity bar causes both individual and institutional harms. Of particular importance, because it operates irrespective of how compelling the individual claim of error may be, it blocks the opportunity to secure relief on claims in approximately one quarter of all capital cases. The nonretroactivity rule also thwarts the efforts of courts to recognize new rights applicable to collateral proceedings, no matter how sound such new rights might be.
This Article argues that the Court should modify its nonretroactivity doctrine to reflect equity’s traditions. In particular, the Court should adopt three individualized equitable exceptions to the now-absolute retroactivity bar that take account of applicants’ conduct in pursuing claims, the merits of the claim and the stakes involved, and the unavailability of alternative remedies. These exceptions might not alleviate all of the inequities created by the nonretroactivity rule. They would, however, bring it more in line with its four companion habeas bars, providing a measure of coherence to these gatekeeping doctrines and reconnecting the nonretroactivity rule with the writ’s deep equitable roots.
February 17, 2013
"DNA Collection After Arrest: A Few Thoughts on Maryland v. King"
Orin Kerr has this post at The Volokh Conspiracy. In part:
I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis of the sample. Under Skinner v. Railway Labor Executives Association, 489 U.S. 602, 616 (1989), analyzing the sample to obtain the DNA profile is a second search: It reveals information about the DNA not otherwise visible, searching it much like opening a closed container. (At the same time, entering the profile into the DNA database and obtaining the match would not be a search. The data contained in the profile was disclosed to the police as the fruit of the search, and once the police have the data in their possession they can enter it into a database and manipulate it without further limits from the Fourth Amendment.) So the legality of the government’s conduct boils down to the reasonableness of two searches: The buccal swab, and the creation of the DNA testing.
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