New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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Lessons From Sixteen Years of the PLRA and AEDPA

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.  

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