Simon to Speak on Punishment for Murder

I’m looking forward to the upcoming George and Margaret Barrock Lecture on Criminal Law.  Berkeley Professor Jonathan Simon will be visiting us on January 24 at 12:30 to speak on punishment for murder.  Here is the teaser:

Although the death penalty may be dying out in the United States, the end stage of capital punishment leaves us grasping more than ever for principles that could govern the power to punish those who are convicted of society’s most feared and loathed category of crime. This need is particularly acute in the United States, where the rise of general incapacitation as the dominant purpose of punishment has produced sentences that are far in excess of international and historic American standards. Professor Simon will suggest that these sentences help to anchor an overall structure of imprisonment that appears unjust and unsustainable, argue for a new version of selective incapacitation limited by dignity as the central purpose of imprisonment, and propose a restructuring of the law of murder to effectuate those goals.

More information about Simon’s lecture, including details about how to RSVP, is here. 

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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

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Whatever Happened to the Underclass?

Those of us whose political memories extend back before the Clinton Administration — and I am still in denial that this is not true for many of my students — may recall a time when the plight of the urban poor seemed a major preoccupation of mainstream journalists and politicians.  I suppose there were even some echoes of this concern as recently as the “No Child Left Behind” phase of the second Bush presidency.  On the whole, though, it has seemed to me that the urban poor have received steadily decreasing attention in our political culture for many years.

Now I get some confirmation and explanation of these impressions in a new paper by David Papke, “The Rise and Fall of the ‘Underclass’: An Exploration of Ideology and the Legal Arena.”  David is particularly interested in the notion of the “underclass,” a common term two decades ago that has since fallen out of use.  Had it retained a more robust place in our political discourse, David suggests that this sort of class conceptualization might have contributed to the political mobilization of the urban poor.  In his view, the displacement of the “underclass” in our national consciousness reflects “a resurgence of the dominant ideology’s traditional emphasis on the individual” (28) — a resurgence that served the interests of the socially powerful by drowning out the social criticism associated with the development of the underclass as an ideological construct.

David’s paper thus provides an interesting counterpoint to a recent paper by Matt Parlow that I blogged about here.  

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