From the Ne’er-Do-Well to the Criminal History Category: The Refinement of the Actuarial Model in Criminal Law

Harcourt discusses three developments in 20th century criminal law: the evolution of parole board decision-making in the early 20th century, the development of fixed sentencing guidelines in the late 20th century, and the growth of criminal profiling as a formal law enforcement tool since the 1960s. In each of these case studies, he focuses on the criminal law decision-making

On Gun Registration, the NRA, Adolf Hitler, and Nazi Gun Laws: Exploding the Gun Culture Wars (A Call to Historians)

Say the words gun registration to many Americans – especially pro-gun Americans, including the 3.5 million-plus members of the National Rifle Association ( NRA ) – and you are likely to hear about Adolf Hitler, Nazi gun laws, gun confiscation, and the Holocaust. More specifically, you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the genocide of the Jewish population. German firearm laws and hysteria created against Jewish firearm owners played a major role in laying the groundwork for the eradication of German Jewry in the Holocaust, writes Stephen Halbrook, a pro-gun lawyer. If the Nazi experience teaches anything, Halbrook declares, it teaches that totalitarian governments will attempt to disarm their subjects so as to extinguish any ability to resist crimes against humanity. Or, as David Kopel, research director of the Independence Institute, states more succinctly: Simply put, if not for gun control, Hitler would not have been able to murder 21 million people

Mature Adjudication: Interpretive Choice in Recent Death Penalty Cases

Capital punishment presents a hard case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment. Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme Court opinions in Callins v. Collins – reflect the critical role of interpretive choice in capital adjudication. They demonstrate that the ultimate legal decision regarding capital punishment invariably is resolved by a normative choice among competing values, and that the competing normative choices equally support liberal constitutional aspirations. A comparison of these two decisions offers, through the lens of the South African court, a visionary model of judicial decisionmaking – a model of mature adjudication. It is mature because it incorporates liberal aspirations within the larger context of an open and transparent discussion about values. It is also mature in its attentiveness to, and respect for, the experiences and opinions of judicial colleagues in the international community. This Comment explores the contributions of the Makwanyane and Callins decisions to our evolving concept of adjudication. Part I explores the interpretive choices made by the two courts. Part II discusses the particular vision of mature adjudication offered by the South African court, and Part III comments upon the South African court\u27s use of comparative law

The Collapse of the Harm Principle

In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Three additional liquor establishments were voted shut in February 1999. Along with the fourteen other neighborhoods that passed dry votes in 1996 and those that went dry right after Prohibition, to date more than 15% of Chicago has voted itself dry. The closures affect alcohol-related businesses, like liquor stores and bars, but do not restrict drinking in the privacy of one\u27s hoifie. The legal mechanism is an arcane 1933 vote yourself dry law, enacted at the time of the repeal of Prohibition, and amended by the state legislature in 1995

Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City\u27s new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the famous Broken Windows essay as the bible of policing and the blueprint for community policing. Order-maintenance policing has been called the Holy Grail of the \u2790s. There is little dispute that the theory works, says the ABA Journal. It has sparked a revolution in American policing, according to the Christian Science Monitor, in an article captioned One Man\u27s Theory Is Cutting Crime in Urban Streets. Even the recent U.S. News & World Report cover story on crime – a cover story that debunks nearly every hypothesis for the national decline in crime – makes a passing curtsy to the quality-of-life initiative: Clearly, smarter policing was spectacularly decisive in some cities like New York. Former Police Commissioner William Bratton, the principal architect of the quality-of-life initiative, credits the broken windows theory with falling crime rates in New York City. These successes didn\u27t just happen, Bratton contends. They were achieved by embracing the concept of community policing. Wesley Skogan, a political scientist at Northwestern University, has conducted an empirical study of the broken windows theory and concludes that \u27[b]roken windows\u27 do need to be repaired quickly. George Kelling, co-author of Broken Windows and of a recent book entitled Fixing Broken Windows, contends that Skogan established the causal links between disorder and serious crime – empirically verifying the \u27Broken Windows\u27 hypotheses. In this euphoria of support, it is today practically impossible to find a single scholarly article that takes issue with the quality-oflife initiative. It stands, in essence, uncontested – even in the legal academy

From the Asylum to the Prison: Rethinking the Incarceration Revolution

The incarceration revolution of the late twentieth century fueled ongoing research on the relationship between rates of incarceration and crime, unemployment, education, and other social indicators. In this research, the variable intended to capture the level of confinement in society was conceptualized and measured as the rate of incarceration in state and federal prisons and county jails. This, however, fails to take account of other equally important forms of confinement, especially commitment to mental hospitals and asylums. When the data on mental hospitalization rates are combined with the data on imprisonment rates for the period 1928 through 2000, the incarceration revolution of the late twentieth century barely reaches the level of aggregated institutionalization that the United States experienced at mid-century. The highest rate of aggregated institutionalization during the entire period occurred in 1955 when almost 640 persons per 100,000 adults over age 15 were institutionalized in asylums, mental hospitals, and state and federal prisons. Equally surprising, the trend for aggregated institutionalization reflects a mirror image of the national homicide rate during the period 1928 through 2000. Using a Prais-Winsten regression model that corrects for autocorrelation in time-series data, and holding constant three leading structural covariates of homicide, this Article finds a large, statistically significant, and robust relationship between aggregated institutionalization and homicide rates. These findings underscore, more than anything, how much institutionalization there was at mid-century. The implications are both practical and theoretical. As a practical matter, empirical research that uses confinement as a value of interest should use an aggregated institutionalization rate that incorporates mental hospitalization rates. At a theoretical level, these findings suggest that it may be the continuity of confinement – and not just the incarceration explosion – that needs to be explored and explained

Mature Adjudication: Interpretive Choice in Recent Death Penalty Cases

Capital punishment presents a hard case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment. Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme Court opinions in Callins v. Collins – reflect the critical role of interpretive choice in capital adjudication. They demonstrate that the ultimate legal decision regarding capital punishment invariably is resolved by a normative choice among competing values, and that the competing normative choices equally support liberal constitutional aspirations. A comparison of these two decisions offers, through the lens of the South African court, a visionary model of judicial decisionmaking – a model of mature adjudication. It is mature because it incorporates liberal aspirations within the larger context of an open and transparent discussion about values. It is also mature in its attentiveness to, and respect for, the experiences and opinions of judicial colleagues in the international community. This Comment explores the contributions of the Makwanyane and Callins decisions to our evolving concept of adjudication. Part I explores the interpretive choices made by the two courts. Part II discusses the particular vision of mature adjudication offered by the South African court, and Part III comments upon the South African court\u27s use of comparative law

Guns, Crime, and Punishment in America

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use of a firearm in a predicate crime ranges from five years to life imprisonment. In state courts in the mid-1990s, the average maximum length of prison sentences for weapons offenses was almost four years

Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy\u27s message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, a program ultimately enacted by Congress in 1963 under the Community Mental Health Centers Act. President Kennedy\u27s message to Congress was straightforward: If we launch a broad new mental health program now, it will be possible within a decade or two to reduce the number of patients now under custodial care by 50 percent or more. Many more mentally ill can be helped to remain in their homes without hardship to themselves or their families. Those who are hospitalized can be helped to return to their own communities … Central to a new mental health program is comprehensive community care. Merely pouring Federal funds into a continuation of the outmoded type of institutional care which now prevails would make little difference. President Kennedy\u27s aspiration of a 50% drop, it turns out, underestimated the extent of deinstitutionalization that would take place. The passage of the Community Mental Health Centers Act in 1963 would be followed by the largest institutional migration that has ever occurred in this country. During the period 1965 to 1975, the inpatient population in state and county mental hospitals would plummet a stunning 59.3%. The mean decrease per year over that period would reach almost 9%. During the next five years, from 1975 to 1980, the drop in inpatient populations would continue, down another 28.9%. All in all, from 1955 to 1980, the number of persons institutionalized in mental health facilities declined by 75%

From the Ne\u27er-Do-Well to the Criminal History Category: The Refinement of the Actuarial Model in Criminal Law

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. At the close of the century, the contrast could hardly have been greater. Practically every state had repudiated in some way indeterminate sentencing and imposed significant, in some cases complete, constraints on the discretion of sentencing judges and parole boards. In many states, parole boards were simply abolished. The period was marked by a new era of uniformity and consistency in sentencing