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

Meditaciones postmodernas sobre el castigo: acerca de los límites de la razón y de las virtudes de la aleatoriedad

[Resumen] Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, pre- guntaba: ¿En qué basa el soberano su derecho de penar?. Nietzsche con mayor deter- minación, pero también otros, argumentaron que la propia pregunta implicaba ya su res- puesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos?. Una serie de críticas ulteriores –de metana- rrativas, funcionalistas o de objetividad científica- debilitaron esta segunda línea de indagación, y contribuyeron a dar forma a un tercer conjunto de interrogantes: ¿Qué nos cuenta la pena de nosotros mismos y de nuestra cultura?. ¿Qué está sucediendo que nos permita ver lo que se halla tras el giro cultural?. ¿Qué interrogantes podemos –nosotros, hijos del siglo XXI- formular en relación con nuestras prácticas e instituciones puniti- vas?. Este ensayo argumenta que debemos abandonar el desorientado proyecto de la modernidad, reconocer de una vez y definitivamente los límites de la razón, y orientar- nos hacia la aleatoriedad y el azar. En todos los textos modernos llegó siempre un momento en el que los hechos empíricos se agotaron y las deducciones de principio alcanzaron su límite –o ambas situaciones a la vez- y el razonamiento simplemente con- tinuó. Más que continuar asumiendo estas profesiones de fe, el presente ensayo argu- menta que debemos reconocer los límites críticos de la razón y, cada vez que los alcan- cemos, confiar en la aleatoriedad. Donde los hechos se agotan, donde nuestros princi- pios ya no nos guían, debemos dejar la toma de decisión al lanzamiento de moneda, a los dados, a la lotería –en suma, al azar. Este ensayo comienza a explorar lo que ello pueda significar en el ámbito del delito y de la pena.[Abstract] Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. With the birth of the social scien- ces, this skepticism gave rise to a second set of questions: What then is the true func- tion of punishment? What is it that we do when we punish? A series of further criti- ques—of meta-narratives, of functionalism, of scientific objectivity—softened this second line of inquiry and helped shape a third set of questions: What does punishment tell us about ourselves and our culture? What happens now that we have seen what lies around the cultural bend? What question shall we—children of the 21st century—pose of our punishment practices and institutions? This essay argues that we should abandon the misguided project of modernity, recognize once and for all the limits of reason, and turn instead to randomization and chance. In all the modern texts, there always came this moment when the empirical facts ran out or the deductions of principle reached their limit—or both—and yet the reasoning continued. Rather than continue to take these leaps of faith, this essay argues that we should recognize the critical limits of rea- son and, whenever we reach them, rely instead on randomization. Where our facts run out, where our principles no longer guide us, we should leave the decision-making to the coin toss, the roll of the dice, the lottery draw—in sum, to chance. This essay begins to explore what that would mean in the field of crime and punishment

Beccaria\u27s \u3ci\u3eOn Crimes and Punishments\u3c/i\u3e: A Mirror on the History of the Foundations of Modern Criminal Law

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions of Beccaria’s work and provide an outline of a history of the foundations of modern criminal law. In becoming a classic text that has been so widely and varyingly cited, though perhaps little read today, On Crimes and Punishments may be used as a mirror on the key projects over the past two centuries and a half in the domain of penal law and punishment theory – and this essay hopes to contribute, in a small way, to such an endeavor. In the end, we may learn as much about those who have appropriated and used Beccaria than we would about Beccaria himself – perhaps more

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

Measured Interpretation: Introducing the Method of Correspondence Analysis to Legal Studies

Professor Harcourt develops and advocates a method to more rigorously measure and evaluate how qualitative “social meaning” variables relate to legal practices and public policies. The method integrates in-depth qualitative interviews with an experimental free associational component, map analysis of the interviews, and a methodology, correspondence analysis, that remains little known in the United States despite its acceptance in other parts of the world. Correspondence analysis, according to Professor Harcourt, is a tool that allows researchers to visually represent the relationship between structures of social meaning and the contexts and practices within which they are embedded. This method opens up structures of meaning in a more accessible and rigorous way than was previously possible, and can significantly aid in the analysis of legal and public policy. Professor Harcourt uses his own research, focusing on the social meanings of guns to youth, as an example of how correspondence analysis works. Using this method, Professor Harcourt extracts and graphically represents meanings from interviews of thirty incarcerated male youths and analyzes the policy implications of his findings

Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets

This Article represents the culmination of over two-years of historical research, but it arrives at an odd moment, right in the middle of one of the largest financial crises in Western capitalism. In one sense, it is bad timing because the central premise of the Article is that most people today believe that the market is the most efficient mechanism to allocate resources. The federal bailouts of 2008 challenge this central premise and are forcing the American people to reexamine the need for the regulation of the free market. In another sense, the timing is, sadly, perfect. Perfect because the purpose of this Article is to question the meaning of the phrase the need for the regulation of the free market and to suggest that it is precisely the belief in the duality of those two terms – regulation and free market – that is one of the greatest problems we face today. The terms, as well as their companion expressions, market efficiency, natural order, self-adjusting markets, etc., are misleading categories that fail to capture the individual distinctiveness of different forms of market organization. These categories are responsible, first, for facilitating our growing penal sphere, and, second, for naturalizing and thereby masking the redistributive consequences associated with different methods of organizing markets. This Article asks the question, what work do these categories of natural order and market efficiency do for us? The story begins very far in time and place, in the Parisian markets of the eighteenth century, with the establishment of the lieutenant generale de police du Chatelet de Paris and the police of bakers, grain merchants, and markets