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August 26, 2019

Honing your "who" radar

IN the next few weeks, we will be spending a lot of time discussing in various ways "who" plays a significant role in the sentencing process.  We will start with some normative discussion of just who you think are the "whos" who should (and who should not) be the most significant players in the sentencing process.  But the day-to-day work of the best criminal lawyers often involve (1) being able to effectively identify descriptively "who" actually plays a major role, and then (2) figuring out how best to influence the decisions of that "who."  

In other words, those with good "who" radar can often be the most effective sentencing lawyers.  So I will spend a lot of time in class encouraging you to identify important "whos" in important sentencing setting.  And you can start honing your "who" radar by checking out some recent pieces from my sentencing blog that highlight some notable "who" realities:

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes" 

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder 

Lots of advice on federal prisons for AG Barr and the new leadership at the Bureau of Prisons

Terrific review of localities that are "Addicted to Fines"

August 26, 2019 in Who decides | Permalink


The second link, "Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems" makes a lot of sense to speed up federal clemency requests in that it distributes the potential early release cases across federal jurisdictions without first getting DOJ/Bureau of Prisons approval. Because the final decider changes from one executive group to many judges, this solution, however, raises questions about disparity. The requests may be seen more quickly (although the cases would also contribute to the growing federal caseload) but clemency potentially would be granted with less uniformity. I think that this might be an okay drawback if the intention of the program is to identify and release as many non-violent offenders as possible. But, the solution tugs a little on my fairness notions - should judges' biases dictate who is granted clemency?

Posted by: Kate Toth | Aug 27, 2019 3:36:12 PM

From the first link, I find the majority on the Washington Supreme Court's reasoning for its opinion to be sound. My concern lies with the concurrence from Justice Yu. Namely that "But a punishment that may be constitutionally permissible today may not pass muster tomorrow." To me, this gets into a disparity flowing not from discretion but from time. (Or perhaps it is discretion but the discretion exercised not by a single person evaluating different criteria but entirely different decisionmakers based on *when* a decision is being made). This would inevitably lead to disparate punishments based on when someone's sentence or crime was committed which smacks of arbitrariness.

I wonder if this willingness to use the "evolving standards of decency" to change what punishments are legally (if not morally) acceptable flows from the priorities of which purpose of punishment one adopts? Approaching things from a position prioritizing rehabilitation or deterrence seems very fact-intensive: As we learn more about the efficacy of certain punishments for those purposes, our standards would obviously change. But a retributivist position seems more firm (if you like retributivism) or more rigid (if you do not).

Posted by: Frank Bumb | Aug 27, 2019 8:18:38 PM

In regards to the last link, it brought to mind the Department of Justice investigation into the Ferguson Police Department. The use of law enforcement to primarily generate revenue instead of protect the public had effects on the whole system. All the "who's" of the municipal government were in on it: the City Manager, the Chief of Police, the Municipal Judge, and many of those that worked under them. These tactics deepened the racial biases and poverty of the community while furthering community distrust.
Localities need to make money, but not at the loss of the justice system. At the risk of sounding redundant, when you don't prioritize justice, justice is not prioritized--this disregard by Ferguson officials led to a laundry-list of unconstitutional and reprehensible behaviors going unchecked. In fact, the DOJ concluded that this focus on revenue eroded police legitimacy, community trust, and made Ferguson less safe. In comparison, taxes don't sound so bad...

Posted by: Bethany Jones | Aug 28, 2019 9:14:49 PM

All this talk about the “whos” of the criminal justice system and Professor Berman’s mention of progressive prosecutors has made me mull over whether progressives utilizing discretion have the capacity to enact long-lasting change to the criminal justice system. After some thought, I have begun to realize that people advocating for criminal justice reform may differ in their ultimate goals, which informs where they stand on whether to accept progressive prosecutors. On one hand, a staunch abolitionist may view the progressive prosecutor movement as a Band-Aid that does a poor job of treating a serious infection. On the other hand, a more moderate reformist may argue that progressive prosecution may be a workable fix when the executive, judicial, and legislative branches are slow to turn the wheels of justice in the correct direction.

Ultimately, I think advocates of progressive prosecution need to be realistic and define the role of the progressive prosecutor as only a temporary fix (with the definition temporary being up for debate). No matter how much discretion a prosecutor may have, it could never measure with the more concrete changes the official branches of government can come up with. That said, progress still has to come from somewhere. Maybe the progressive prosecutors will continue to strengthen the movement towards larger reforms rather than legitimize a broken system as one person argues (see student note below).

Links to some of the background informing my thoughts:



Posted by: Timothy Rosensteel | Sep 10, 2019 10:19:34 PM

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