Corrections & Sentencing Law & Policy eJournal最新文献

{"title":"Positive Sanctions versus Imprisonment","authors":"Murat C. Mungan","doi":"10.2139/ssrn.3317552","DOIUrl":"https://doi.org/10.2139/ssrn.3317552","url":null,"abstract":"This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to non-convicts. Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. The feasibility of this procedure depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies. A subsequent welfare analysis reveals an advantage of positive sanctions: they operate by transferring or creating wealth, whereas imprisonment destroys wealth. Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes. With an exogenous [resp. endogenous] budget for law enforcement, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small [resp. the marginal cost of public funds is not high]. These conditions hold, implying that using positive sanctions is optimal, in numerical examples generated by using estimates for key values from the empirical literature.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121310134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting Hawes: Social Capital and Racial Disparity in Incarceration Rates","authors":"Daniel D. Oladejo, Kruti R. Lehenbauer","doi":"10.2139/ssrn.3303337","DOIUrl":"https://doi.org/10.2139/ssrn.3303337","url":null,"abstract":"Over the past twenty-five years, the U.S prison system has experienced continuous substantial increment in the prison population. At the same time, incarceration rates have risen by more than 300%, a phenomenon that many analysts have referred to as mass incarceration (DeFina and Hannon, 2013). This study investigates the various divergent impacts of social capital on policy egalitarianism in state outcomes. Notably, this paper reviews the relationships connecting social capital and incarceration rates, while analyzing the level of racial disparities in incarceration rates in the American states using a state-level panel data spanning 1980 to 2015. Building on work by Hawes (2017), we present a theoretical description and empirical examination for how social capital functions uniquely under different racial contexts using a newer dataset. The results suggest that there is a positive correlation between social capital and the incarceration of many African American which is more profound in some states than others.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122575055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Redefining the Circumstances in Which Family Hardship Should Mitigate Sentence Severity","authors":"M. Bagaric","doi":"10.53637/ulrz6136","DOIUrl":"https://doi.org/10.53637/ulrz6136","url":null,"abstract":"The hardship stemming from prison goes well beyond the pain experienced by offenders. The family and dependants of prisoners often experience significant inconvenience and hardship. Family members of prisoners have not engaged in wrongdoing and hence arguably their suffering should be a mitigating consideration in sentencing. However, this approach potentially unfairly advantages offenders with close family connections and undermines the capacity of courts to satisfy a number of important sentencing objectives, including the imposition of proportionate penalties. The courts and legislatures have not been able to find a coherent manner in which to reconcile this tension. There is conflicting case law regarding the circumstances in which family hardship can mitigate the severity of criminal penalties. This article examines these competing positions and proposes that family hardship should mitigate penalty severity only when incarcerating the offender would cause severe financial hardship to his or her dependants.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131150011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Leveraging Marijuana Reform to Enhance Expungement Practices","authors":"D. A. Berman","doi":"10.1525/FSR.2018.30.4-5.305","DOIUrl":"https://doi.org/10.1525/FSR.2018.30.4-5.305","url":null,"abstract":"States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization. State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system. So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions. In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements. \u0000Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform. Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions. Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements. This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129053674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constructing Recidivism Risk","authors":"Jessica M. Eaglin","doi":"10.2139/ssrn.2821136","DOIUrl":"https://doi.org/10.2139/ssrn.2821136","url":null,"abstract":"“Evidence-based sentencing” informs criminal sentencing determinations by using statistically derived risk assessment tools to predict a defendant’s likelihood of committing future crimes. By relying on data-driven risk assessment tools, this practice applies Big Data techniques to sentencing. This Article challenges the perception that such risk assessment tools neutrally classify a defendant’s recidivism risk. Scientists who construct such tools necessarily make normative choices and embed them in the tools’ design. Such choices – including how the scientists formulate the data set, how they define “recidivism” and which factors they select to create a risk tool’s underlying algorithm – all require subjective judgment calls and can introduce inadvertent bias. Rendered invisible once tools have been created, decisions about how to select, process and analyze data amount to distinct, if unintended, sentencing policy choices when judges use such risk assessment tools through evidence-based sentencing. That data scientists make such calls present three unique concerns. First, tool creators face diverging interests when exercising their discretion. Data scientists tend to make design choices based on data robustness and tool accuracy, but such interests can conflict with or even contradict sentencing policy. Second, tool creators are ill-equipped to resolve existing racial disparities in the criminal justice system, but their design choices potentially replicate and exacerbate these disparities significantly. Finally, tool creators have little incentive to disclose the policy and data choices made, leading to misuse of and misrepresentation about the value of their seemingly objective and scientifically derived information. A partial solution lies in requiring more transparency about the recidivism risk tools' design. Additionally, those with criminal justice expertise must be included in the tool design process. This Article calls for disclosure of data processing decisions and risk assessment tool assumptions, and review by trained governmental entities to translate the design choices for consumption by judges and probation officers in states that permit evidence-based sentencing. Recognizing the intricate and problematic connection between Big Data and evidence-based sentencing, this Article concludes by considering obstacles to even this modest call for oversight in such a new and sometimes inaccessible area of criminal justice reform.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131399449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Profit-Driven Prosecution and the Competitive Bidding Process","authors":"Maybell Romero","doi":"10.2139/SSRN.2820312","DOIUrl":"https://doi.org/10.2139/SSRN.2820312","url":null,"abstract":"Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing “prosecutorial norm” in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and professional energies to criminal prosecution, and 3) tries to somehow do or affect some vague notion of “justice.” Such norms, however, are regularly challenged and flouted when the prosecutorial function is outsourced. While the outsourcing of nearly every function of the criminal adjudicative process has attracted great attention among scholars and policymakers, a greater critical lens must be focused on prosecutors.The hazards of prosecutorial outsourcing have largely been neglected because existing prosecutorial scholarship focuses on the United States Attorney or district attorneys’ offices in large, metropolitan areas. Not all prosecutorial offices are created equal, however. Cities, towns, and other small political subdivisions throughout the country frequently hire prosecutors on a part-time basis through a competitive bidding process, releasing requests for proposals (RFPs) in an effort to procure bids. This practice, however, may be observed not only in small or rural municipalities, but also in cities located near larger population centers. Examples of such municipalities include Ferguson, Missouri, or Kyle, Texas. Such local governments often work with budgets that are not expansive enough to hire a full-time city attorney or prosecutor. Beyond demonstrating the qualifications the applicant attorneys or firms vying for a prosecution contract may have to serve as good prosecutors, applications from such applicants must also demonstrate cost effectiveness by detailing what budget and compensation is required during the term of service specified by the RFP.While engaging in a competitive bidding process may seem like a smart way to handle the problem of governmental waste and financial inefficiencies, it introduces a host of challenges and negative externalities. This Article sheds light on the problems caused by introducing an overtly economic calculation (how cheaply and how profitably the prosecutorial function may be fulfilled) into the criminal adjudicative process. This practice not only flouts American Bar Association and National District Attorney Association prosecutorial standards, but also undermines the prosecutorial norms described above in ways that are likely to destabilize confidence — and the social cohesion born of such confidence — in local criminal","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115161698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judging Judicial Elections","authors":"Michael S. Kang, Joanna M. Shepherd","doi":"10.36644/mlr.114.6.judging","DOIUrl":"https://doi.org/10.36644/mlr.114.6.judging","url":null,"abstract":"Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election reform since her retirement from the Supreme Court, warns that “there are many who think of judges as politicians in robes” and agrees “[i]n many states, that’s what they are.” Melinda Gann Hall, a political scientist and authority on judicial behavior, sets out in her book to challenge some of these claims.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115563691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"High Pain, No Gain: How Juvenile Administrative Fees Harm Low-Income Families in Alameda County, California","authors":"Alexander M Kaplan, Ahmed Lavalais, Tim Kline, J. Le, Rachel Draznin-Nagy, Ingrid V. Rodriguez, Jenny van der Heyde, Stephanie Campos-Bui, Jeffrey Selbin","doi":"10.2139/SSRN.2738710","DOIUrl":"https://doi.org/10.2139/SSRN.2738710","url":null,"abstract":"National attention is focused on racial and economic discrimination in the criminal justice system. Racially disproportionate interaction with the system leaves people of color with significantly more court-related debt. While criminal court debt has been described and condemned in the adult system, this issue has received virtually no attention in the juvenile system, where fees undermine rehabilitative goals. This report presents research findings about the practice of assessing and collecting fees on families with youth in the juvenile system in Alameda County, California. The County charges these fees to thousands of families who are already struggling to maintain economic and social stability, and the financial burden appears to fall most heavily on families of color. Although the fees are supposed to help the county recoup expenses, its own data suggest that the County barely recovers the most direct costs of collection.The report calls for an immediate moratorium and repeal on the assessment and collection of these regressive and racially discriminatory fees (NB: On March 29, 2019, the Alameda County Board of Supervisors imposed a fees moratorium and asked the relevant county departments to prepare for a full repeal by June 28, 2016).","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128332578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform","authors":"Mark W. Bennett, Justin D. Levinson, K. Hioki","doi":"10.2139/SSRN.2735864","DOIUrl":"https://doi.org/10.2139/SSRN.2735864","url":null,"abstract":"White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups. In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications. This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences. It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress. This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant. We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range. The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president. Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"179 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128211756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Economic Interest Convergence in Downsizing Imprisonment","authors":"SpearIt","doi":"10.5195/LAWREVIEW.2014.345","DOIUrl":"https://doi.org/10.5195/LAWREVIEW.2014.345","url":null,"abstract":"This Essay employs a variation of the “interest convergence” concept to examine the competing interests at stake in downsizing imprisonment in the United States. In the last few decades, the country has become the world leader in both incarceration rates and number of inmates. Reversing these trends is a common goal of multiple parties, who advocate prison reform under different rationales. Some advocate less imprisonment as a means of tempering the disparate effects of imprisonment on individual offenders and the communities to which they return. Others support downsizing based on conservative values that favor reduced government size, spending, and interference in the lives of citizens. Still others see downsizing primarily as a means of reducing fiscal spending and balancing budgets; with some state correctional systems having morphed into a multi-billion dollar a year commitment, punishment has become a great financial drain. Of these competing rationales, interest convergence theory suggests that economic interests will be a driving force of prison reform. If the last few years are indicative, legislatures, courts, and executive officials will continue to take cost into increasing consideration in creating law and policy, and ultimately the need to save money will rein in the criminal justice system. This Essay contends that downsizing imprisonment in the name of saving money may not be the most principled basis for reform, but it should nonetheless be welcomed by prison reformers of all stripes. As unfortunate as it may be, for the bedraggled communities and neighborhoods burdened by the collateral costs of mass imprisonment, any means will suffice.","PeriodicalId":372228,"journal":{"name":"Corrections & Sentencing Law & Policy eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130396523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}