Criminal Process as Morality Play

My review of Stephanos Bibas’s book The Machinery of Criminal Justice is now available on SSRN.  Here is the abstract:

Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.

Entitled “(The History of) Criminal Justice as a Morality Play,” my essay will appear in the Penn Law Review’s on-line journal, PENNumbra.

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Fining Felons and Felling Trees to Fill our Public School Libraries

Section 16 ImageLast year, a total of $32.5 million were distributed to Wisconsin’s public school libraries thanks to a land grant ordinance that predates the United States Constitution. This little known gift from the Confederation Congress has a fascinating history that reflects the high value placed on public education since our nation’s inception.

The founding fathers believed that public education was the surest way to prepare citizens to exercise the freedoms and responsibilities of our “republican form of government.” As such, the Land Ordinance of 1785 granted every new state one square mile of land within each township (specifically designating “section sixteen” on each township’s newly surveyed thirty-six section plat map) “for the maintenance of public schools . . . .” The sentiment behind this grant was reiterated in the Northwest Ordinance of 1787, which announced that “schools and the means of education shall forever be encouraged.”

Despite their enactment prior to the ratification of the United States Constitution in 1789, these two landmark ordinances continued to govern the process of states’ accession into the Union for many years to come. As such, when Wisconsin was in pursuit of statehood over seventy years later, the Wisconsin Enabling Act contained a provision that the “section numbered sixteen, in every township . . . shall be granted to said state for the use of schools.” This resulted in nearly 1.5 million acres of federal land being handed over to a young State of Wisconsin for the creation of its public school system. Although much of this land was quickly sold to new settlers, Wisconsin’s schoolchildren still enjoy its dividends today.

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Imprisonment Trends in the Heartland

A draft of my new article, “Mass Incarceration in the Three Midwestern States: Origins and Trends,” is now available on SSRN. Here’s the abstract:

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.

The article builds on my series of “Tale of Three States” blog posts from about a year ago. It will appear in print later this year in a symposium issue of the Valparaiso Law Review.

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