When Critical Race Theory Enters the Law & Technology Frame

Jessica Eaglin intertwines the social construction of race, law and technology. This piece highlights how the approach to use technology as precise tools for criminal administration or objective solutions to societal issues often fails to consider how laws and technologies are created in our racialized society. If we do not consider how race and technology are co-productive, we will fail to reach substantive justice and instead reinforce existing racial hierarchies legitimated by laws

Against Neorehabilitation

In the face of severe budget constraints, bipartisan calls for reform, dropping crime rates, and judicial intervention, states are seriously considering and implementing criminal justice reform to manage prison populations for the first time in three decades. Scholars agree that states need a guiding theory to transform emergency and short-term reforms into a long-term shift in policy and practice away from mass incarceration. Numerous scholars advocate for a return to an improved theory of rehabilitation to guide the states in implementing such reform. This return-through neorehabilitation, or the rehabilitation of rehabilitation-centers on the use of evidence-based programming and predictive tools to create a rehabilitative model that works. Despite the intriguing nature of this new rehabilitative model, this Article challenges this general shift in scholarly and practical reform. It argues that the problem of mass incarceration cannot be resolved through a return to this particular form of rehabilitation, no matter how improved it may be. To that end, this Article demonstrates that current rehabilitation-guided sentencing reforms-with their emphasis on evidence-based programming and the use of predictive tools-have several inherent flaws that will limit the efforts to downsize prison populations beyond mere budget-cut crises. Specifically, the neorehabilitative model stands to institutionalize a focus on the wrong offenders, exacerbate racial disparities, and distort our perception of justice. Moreover, this new rehabilitation model fails to provide a sufficiently different theory of reform from total incapacitation, which grew out of the desire to improve rehabilitation. For these reasons, this Article argues that the neorehabilitative model is a dangerous theory of reform as states shift towards broader and long-term sentencing policies

The Perils of Old and New in Sentencing Reform

This Essay turns attention from actuarial risk assessment tools as a reform to the inclination for a technical sentencing reform more broadly. When situated in the context of technical guidelines created to structure and regulate judicial discretion in the 1980s and beyond, the institutionalization of an actuarial risk assessment at sentencing is both an old and new idea. Both sentencing guidelines and actuarial risk assessments raise conceptual and empirical questions about sentencing law and policy. This Essay drills down on two conceptual issues—equality and selective incapacitation—to highlight that actuarial risk assessments as a reform raise recurring questions about sentencing, even as social perspectives on resolving those questions are shifting. Rather than using the “old” nature of the questions as evidence that tools should proliferate; however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration. It calls for expanding the methodological scope of critiques about actuarial risk tools as sentencing reform going forward. I thank the Annual Survey of American Law and NYU School of Law for the opportunity to reflect on these issues in the context of a symposium celebrating the work of Professor Stephen Schulhofer. This contribution unfolds in four parts. Part I introduces actuarial risk tools as a sentencing reform. Part II complicates the perception that the tools are “new” by framing this reform in the context of the turn toward judicial sentencing guidelines as a reform in the 1980s. Part III considers how recurring issues of equality and incapacitation obscure social transformations related to expansion of the carceral state between implementation of sentencing guidelines and proliferation of actuarial tools in the present day. Part IV asserts that the framing of “old” and “new” in current scholarship about actuarial risk tools as a sentencing reform is detrimental. It encourages expanding methodological approaches that inform scholarship on this type of reform going forward

Racializing Algorithms

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It further explains how these same assumptions normalize the socially and historically contingent process of producing race and racial hierarchy in society through law. Normatively, this Article rejects the notion that tinkering around or facilitating the abolition of algorithms present the only viable solutions in law. Rather, it calls upon legal scholars to consider directly how to use the law to challenge the production of racial hierarchy at the intersection of technology and society. This Article proposes shifting the legal discourse on algorithms as criminal legal reform to critically center racism as an important step in this larger project moving forward

Population-Based Sentencing

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses. How have courts responded to this trend? Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques. First, the courts have expanded individual procedural rights into sentencing where they once did not apply. Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants. These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract. While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration. However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward

The Drug Court Paradigm

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts. This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens. This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration