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A Net for a Cooperator’s Leap of Faith: The Due Process Need for Universal Acceptance of Bad Faith Review of Prosecutors’ Substantial Assistance Determinations in Federal Sentencing
Get PDFCooperation is critical to federal criminal cases. For the government, cooperation is vital to securing the leads, information, and evidence needed to successfully investigate and prosecute criminal activity, particularly drug trafficking conspiracies and white-collar fraud crimes. For federal defendants, cooperation is the primary way to reduce their prison time exposure. Therefore, how a defendant’s cooperation is evaluated and translated into sentencing leniency is a significant issue for the government and cooperating defendants. Federal law and sentencing guidelines grant the keys to the
evaluation process to federal prosecutors by requiring a prosecutor’s substantial assistance motion before a judge can grant sentencing relief based on cooperation. When a federal prosecutor refuses to file a substantial assistance motion, judges have very limited and narrow authority and grounds to compel the government to file the motion or impose a remedy that allows the defendant to benefit from her cooperation. One such ground is bad faith—that a prosecutor’s refusal to file a substantial assistance motion is based on a reason unrelated to the quality of the defendant’s cooperation, but falls short of an unconstitutional reason, such as a defendant’s race or gender. Unfortunately, however, bad faith review is not universally recognized or accepted. This Article explores why the lack of universal acceptance is a mistake, and proposes a bad faith burden-shifting protocol for courts to employ
The Impact Of Incarceration On The Risk Of Violent Recidivism
Get PDFWhether incarceration heightens an individual’s likelihood of recidivating is at the center of prison policy discussions. Yet rigorous empirical studies on the nature of the incarceration—recidivism link are limited. As a whole, existing research suggests that the effect of imprisonment, relative to noncustodial sanctions, is either null or slightly criminogenic. These findings call into question the ability of prisons to exert a specific deterrent effect. They also suggest that prisons are failing to address the underlying causes of recidivism among inmate populations. An important consideration, however, is the extent to which the effects of imprisonment are heterogeneous. The current discussion further unpacks the effect of prison by considering whether and how imprisonment influences the risk of violent recidivism. This Article reviews the different theoretical perspectives invoked to explain the association between incarceration and future violence, as well as the existing research evidence. This Article concludes with implications for theory, research, and policy
High Risk, Not Hopeless: Correctional Intervention For People At Risk For Violence
Get PDFAcross the United States, jurisdictions are working to reduce absurdly high incarceration rates without jeopardizing historically low crime rates. Well-validated risk assessment can identify people at low risk who can be managed safely in the community. But what about high-risk people? In this Article, we synthesize research on effective ways to identify and reduce risk of reoffending among people at high risk of recidivism, including people with psychopathic traits. To maximize the impact of criminal justice reform, we recommend that policymakers prioritize high risk clients for treatment, provide treatments most likely to work with these clients, and reframe incarceration as an opportunity for excellent service provision
Cannabis Legalization in State Legislatures: Public Health Opportunity and Risk
Get PDFCannabis is widely used in the United States and internationally despite its illicit status, but that illicit status is changing. In the United States, thirty-three states and the District of Columbia have legalized medical cannabis, and eleven states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation. From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity to improve on existing legalization models passed using the initiative process that strongly favor business interests over public health. To assess whether state legislatures are acting on this opportunity, this Article examines provisions of proposed adult use cannabis legalization bills active in state legislatures as of February 2019 to evaluate the inclusion of key public health best practices based on successful tobacco and alcohol control public health policy frameworks. Given public support for legalization, further adoption of state adult use cannabis laws is likely, but legalization should not be viewed as a binary choice between total prohibition and laissez faire commercialization. The extent to which adult use cannabis laws incorporate or reject public health best practices will strongly affect their impact, and health advocates should work to influence the construction of such laws to prioritize public health and learn from past successes and failures in regulating other substances
Immigration And Violent Crime: Triangulating Findings Across Diverse Studies
Get PDFThe dramatic increase in both lawful and unauthorized immigration in recent decades produced a groundswell of research on two questions: (1) Does immigration increase violent crime? and (2) What policy responses are most effective at addressing unauthorized immigration (e.g., sanctuary policies, deportations, etc.)? For the most part, these bodies of work have developed independently, and thus we know little as to whether the insights from one inform the other. This Article fills this gap by first reviewing both areas of research and then triangulating shared findings between them. In doing so, we focus on three contemporary immigration policies: (1) increased deportation; (2) “sanctuary” policies, and (3) “amnesty” laws. Our review provides little evidence to suggest that immigration increases the prevalence of violence. For this reason, policies aimed to enhance public safety by reducing immigration are unlikely to deliver on their crime reduction promises
Managing the Risk of Violent Recidivism: Lessons From Legal Responses to Sexual Offenses
Get PDFOver the course of a generation, American legislatures have quietly adopted an intricate web of measures intended to reduce the risk that individuals who have been convicted of violent crimes will commit new violent crimes. These measures include, for instance, sentencing and corrections laws that categorically target “violent offenses” and “violent offenders” for harsher treatment, prohibitions on pretrial diversion opportunities, employment restrictions, and long-term offender registration requirements. Such measures parallel a generally similar, but more closely studied, set of laws that aim to reduce sexual recidivism.This article provides an overview of the literature on sexual-recidivism measures, especially sexual offender registration and notification (“SORN”) and civil commitment for sexually violent predators (“SVPs”), and considers lessons that may be drawn for the improved management of violent-recidivism risk. Existing violent-recidivism measures suffer from the same basic structural flaw that has plagued most existing SORN laws, that is, a reliance on convictions per se as an automatic trigger for legal requirements or disabilities. This inevitably subjects many low-risk individuals to legal controls that are only suitable for higher-risk individuals — a wasteful and potentially counterproductive form of overbreadth. By contrast, SVP civil commitment is based on individualized determinations of risk. This basic approach, with various refinements and adaptations, points to a more promising strategy for addressing the risk of violent recidivism
Early Release for Prisoners Convicted of Violent Crimes: Can Anyone Escape the Incapacitation-Retribution Catch-22?
Get PDFTwo decades of criminal-justice reform in the United States have achieved only a modest reduction in the nation’s historically high imprisonment rate. Returning to the much lower imprisonment rate of a generation ago will almost certainly require shorter prison terms for individuals who have been convicted of violent crimes. Such a change, however, would draw at least two important objections: (1) people who have been convicted of violent crimes are an especially dangerous offender group who ought to be incapacitated behind bars for as long as possible, and (2) violent crimes are so serious that long prison terms are required as a matter of justice. In order to evaluate the strength of these claims, it is necessary to develop a more nuanced understanding of who is serving time for violent offenses and what exactly they have done.In the hope of advancing this understanding, this article undertakes a unique empirical analysis of the nearly 14,000 violence-convicted individuals who are currently in prison in one state, Wisconsin. Focusing first on the incapacitation objection, the article identifies indicators of recidivism risk and quantifies their prevalence among violence-convicted prisoners. Next, the article identifies a set of aggravating and mitigating circumstances that bear on just punishment and quantifies their prevalence. Additionally, the article synthesizes national benchmarks for prison length of stay (LOS) for the major categories of violent crime. Taking into account risk factors, desert factors, and LOS norms, the article suggests a rough estimate of the proportion of violence-convicted prisoners who seem to be viable candidates for early release. The analysis underscores the practical and political challenges of achieving large reductions in this component of the prison population, but also highlights the wide variation that is masked by the stigmatizing “violent criminal” label
Focused Deterrence Violence Prevention At Community And Individual Levels
Get PDFThe focused deterrence violence prevention model emerged as part of Boston Ceasefire in the mid-1990s. Since that time, solid research evidence has emerged indicating focused deterrence can influence community levels of violence, particularly gang- and group-related violence. It is considered an evidence-based violence reduction strategy. The evidence of the impact on individuals, however, is much more limited and mixed. This Article presents the focused deterrence model, reviews the research evidence and considers the implications for reducing violent recidivism. Several lingering research questions as well as considerations for leveraging focused deterrence along with other recidivism reduction strategies are discussed