Rethinking Indeterminate Sentencing

My new article, “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing,” is now available here on SSRN.  The article grew out of my interest in the revival of early-release opportunities that has occurred over the course of the past decade.  This revival has the effect of making sentencing less determinate in many jurisdictions — it is not as clear at the time the judge pronounces the sentence exactly how long the defendant will spend in prison.  It is commonly assumed that indeterminate sentencing is incompatible with retributive approaches to punishment, particularly to the extent that the amount of incarceration is made to depend on considerations other than the gravity of the crime (for instance, on the defendant’s performance while in prison).

My purpose in the article is suggest one way that indeterminate sentencing may be reconceptualized so that it fits tolerably well with at least one version of retributivism.  In essence, an indeterminate sentence is seen as a way to permit limited extensions of incarceration as a retributive response to persistent, willful violations of prison rules.  Were this approach adopted, however, it would probably require a rethinking not only of the way that parole is administered, but also the way that prisons are run.  If prisons are, in practice, little more than warehouses — places of intense exclusion that aim to provide no more than the bare necessities for physical existence — then it is not clear there is a morally satisfactory basis for retributive responses to prison rule-breaking.

The article is forthcoming in the American Criminal Law Review.  The abstract appears after the jump.

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The Early-Release Renaissance: Reflections and a Legislative Update

As I indicated in an earlier post, I’ve been collecting information on new legislation around the country that expands early-release opportunities for prison inmates.  By my count, we are now up to at least 36 states with such legislation in the past decade.  These legislative initiatives, along with other factors, have probably contributed to the recent (modest) decrease in the number of inmates in state prisons.  Does this reflect a durable change in attitudes towards crime and punishment, or is this about short-term fiscal pressures and the need to reduce bloated corrections budgets?  Probably a little of both.

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Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

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