If You Build It . . .

The paths followed by crime and incarceration in the United States have been mirror images of one another over the past two decades.  This can be clearly seen in the graph below, which I prepared for an upcoming conference presentation.

crime and imprisonment

The graph depicts year-by-year rates of imprisonment, homicide, and violent crime (the latter based on results from the National Crime Victimization Survey), indexed to 1992 rates. The mirroring effect is most pronounced if you compare imprisonment (green line) with homicide (red): between 1993 and 1999, imprisonment goes up at almost precisely the same rate that homicide goes down; in 2000, there is an abrupt leveling off in both areas; and neither has seen a lot of change since.  The violent victimization line (blue) mostly tracks the homicide line, save for an additional three years of rapid decline (1999-2002) and a notable uptick between 2009 and 2011.

The mirror-image paths might seem counterintuitive.  Shouldn’t less crime translate into less imprisonment?  Let me suggest three theories to account for what has happened.  

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The Eighth Amendment and Life Without Parole for Adults

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

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Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

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