Monthly Archives: September 2014

Should Parents Get Sentencing Discounts? Our Third Freaky Post

By STEPHEN J. DUBNER

(Dan Markel) Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT’s Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I’ve reprinted the post after the jump. Feel free to weigh in with comments here or there.

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?

A Guest Post

By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

Contacting a Detroit Criminal Lawyer – DetroitCriminalLawyer.org – is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.  A criminal record can wreak havoc in your life, whether you have been only arrested or convicted.

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The Duty to Rescue and the Registry for Caregivers: A Guest Post

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Often people who try to handle serious charges on their own wind up with more serious convictions than those who engage a seasoned attorney to fight on their behalf. Hiring a Detroit domestic violence lawyer (DetroitCriminalLawyer.org) means having a strong advocate to defend you.

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Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

(Jonathan Simon) As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession– our conviction that we might have stopped the tragedy (read William Yardley’s summary of the blame game in the NYTimes).  Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change).  Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons.  More should be learned over the next news cycle or two.  

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small “d” democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics).  Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen).  My objection, however, is limited to two points.

First, our obsession with the “recidivist”.  Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after.  This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances.  Ironically, the one trait that really may help us track future violence–evidence of major mental illness combined with acts of violence–seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

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Workplace Violence? Making Sense of Annie Le’s Murder

(Jonathan Simon) Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn’t think the murder of Annie Le had anything to do with either New Haven or Yale?  In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime?  Last time I checked New Haven counted as a city (maybe not a major city).  Does this just mean that the accused, Raymond Clark, happens to be white?  He was after all otherwise a local.  University crime? I’m not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants.  Domestic crime?  Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark.  But where does the Chief get off hinting darkly that there is a growing problem of “workplace” crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there.  That is particularly true of domestic violence.  When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation.  Many workplaces, like retail stores, are targets for robberies.  Here’s a copy [Download Workplace Violence] of the federal government’s last published report on workplace violence.  Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years.  In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of.  Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of  occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers. 

If you have been falsely accused of domestic violence (DV), or if you have simply made a mistake, the most important thing you can do for yourself is to hire a Domestic Violence Lawyer in Detroit.

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Help Wanted: Clearing the Troubled Assets of the Penal State

(Jonathan Simon) I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title “Careers in Criminal Law: Beyond Defense & Prosecution.”  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late ’60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous “legacy” costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I’m not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

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Crime Decline Conundrum

(Jonathan Simon) With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday’s NYtimes (read Al Baker’sreporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken’s article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide “spike,” with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski’s reporting in the Providence Journal). This is good news in a year with little of it. 

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they’ve been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year’s speculation list of the top three “positive” factors underlying declines in urban domestic violence

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course. 

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

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Judge Brown’s Sleight-of-Hand in Al-Bihani–And Why It Matters…

(Steve Vladeck) It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it.  Thus, I thought I’d take a minute to blog about the Government’s very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v. Obama, filed yesterday in the D.C. Circuit (and discussed by Lyle Denniston @ SCOTUSblog here).  [Full disclosure: I co-authored an amicus brief in support of rehearing en banc.]

The Government’s brief is telling in two distinct respects.  First, as Lyle notes, the Government all-but concedes the principal ground on which al-Bihani is seeking rehearing en banc — i.e., that the panel’s sweeping holding that detention authority under the September 2001 Authorization for Use of Military Force (AUMF) is not informed (or constrained) by the laws of war is thoroughly inconsistent with the Supreme Court’s analysis in Hamdi (and, to a lesser extent, Hamdan). 

But the second telling feature of the Government’s brief, which is perhaps even more significant, is its full-bore defense of the al-Bihanipanel’s procedural discussion (which held, in effect, that Guantanamo detainees are entitled to exceedingly few procedural protections in their habeas cases notwithstanding Boumediene). In particular, at page 13 of their brief (page 17 of the PDF), the Government notes that “The panel simply recognized – correctly – that the habeas review mandated by Boumediene need not match the procedures that apply to habeas challenges to criminal convictions.”

This statement is an entirely fair summary of what the al-Bihani majority actually held. But, like the panel opinion itself, it is an incredibly deceptive reading of Boumediene. Here’s the relevant passage from al-Bihani, with citations omitted (and emphasis added):

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial.” It instead invited ‘‘innovation’’ of habeas procedure by lower courts, granting leeway for ‘‘[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.’’ Boumediene’s holding therefore places Al–Bihani’s procedural argument on shaky ground. The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.

Do you see the sleight-of-hand? In the quoted passage, Boumediene was referring to the procedural protections that attach to criminal trials themselves, not to “habeas challenges to criminal convictions.” Indeed, the procedural protections that attach to post-conviction proceedings (especially non-capital cases) pale in comparison to those that the Constitution and various statutes require in criminal trials, especially these days. So, the al-Bihani majority conflated criminal trials with criminal (post-conviction) habeas, suggesting that, because Boumediene held that Guantanamo habeas petitions need not have the protections attendant to criminal trials, they also need not have the (far lesser) protections attendant to post-conviction habeas petitions.

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