Labeling Violence

In recent years, federal and state-level criminal justice reforms have softened the punitive responses to crime that defined the quarter-century from 1980–2005. The main beneficiaries of these reforms have been non-violent criminals, who are increasingly eligible for pre- and post-charge diversion, expungement, early release from custody and early discharge from community supervision. For those convicted of violent offenses, not much has changed: sentences remain long; opportunities for release remain few; and conditions of post-release supervision are tightly enforced, leading to high rates of return to prison. The justification for a harsh response to violent crime is that such crime inflicts significant harm and represents a dramatic deviation from standards of acceptable behavior. In fact, “violent” behavior—that is, behavior that is intended to cause, or does in fact cause, physical injury to another person—is hardly anomalous. Across the life-course, and particularly in youth and young adulthood, such behaviors frequently occur among a broad spectrum of the population and rarely lead to criminal conviction. This Article explores why only some behavior is labeled violent, and what implications this fact has for sentencing and correctional management of people convicted of violent crimes, and for the broader management of the criminal justice system. “I think the big point is that there are not two kinds of humans: one the kind that commits crimes and gets imprisoned and another the kind that does not commit crimes . . . . I think there is but one kind of human beings, all of whom are a mix of good and bad, all of whom do a mix of good and bad things. As for the bad things, comparatively few of them have been labeled criminal. There is an infinite number of ways not declared crimes in which, without justification, we inflict pain and sorrow upon and exploit one another and destroy the thin envelope of air and water and soil in which we live.” —Hon. James E. Doyle, U.S. District Judg

The Promises and Perils of Evidence-Based Corrections

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called “evidence-based practices” designed to reduce prison populations and their associated fiscal and human costs. These practices—which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques—are based on criminological research about “what works” to reduce convicted individuals’ odds of committing future crimes. Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. In their reliance on aggregate data and classification, many such practices have as much in common with the “new penology” that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent. Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control. Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state

Measuring Change: From Rates of Recidivism to Markers of Desistance

Reducing the incidence of crime is a primary task of the criminal justice system and one for which it rightly should be held accountable. The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment. This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of criminal justice interventions or of those who participate in them. This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid, stand-alone metric imposes on the criminal justice system a responsibility beyond its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens. Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. One such alternative is readily available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends but also by whether there are increasing intervals between offenses and patterns of de-escalating behavior. These easily obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate with positive (or negative) life changes. They also resemble more closely the ways in which other fields that address behavioral change such as education attempt to measure change over time. Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection. Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction

Changing the Sentence without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release

Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than one of every one hundred Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how. Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction

Profiles in Parole Release and Revocation Connecticut

Connecticut shifted from indeterminate to "definite" sentencing in 1981. This means that crimes have statutory minimum and maximum penalties, and that defendants are sentenced to a term of years rather than a range of years. For a time after the 1981 reforms, there was no traditional parole in the state; however, discretionary parole release for those with sentences over two years was reestablished in 1993. In the 1980s and 1990s, there was also an increase in mandatory minimum legislation. In 1995, the legislature established truth in sentencing laws for violent offenders, requiring them to serve at least 85% of a sentence before release. In 2004, the Board of Pardons (established in 1883) and the Board of Paroles (established in 1957) were merged to form the Board of Pardons and Paroles

The Early Demise of Early Release

Reversing the tough-on-crime policies that have defined American criminal justice for the past two decades, cash-strapped states across the nation have begun reducing the number of people they confine in prisons and jails. In their efforts to reduce correctional populations, numerous states have passed laws that allow parole boards, prison officials, or judges to shorten the sentences of people already serving time in custody. These so-called early release laws have proven highly controversial and in at least three states have been repealed outright. In others, they remain on the books but have provided less savings than anticipated because of the failure of decisionmakers to utilize their newly- conferred authority. This Article examines the early demise of early release in several jurisdictions, identifying practical, political, and moral obstacles to the practice of early release that may account for the failure of recent legislation. Responding to those concerns, I suggest principles to guide future efforts to reduce custodial populations through the use of early release. These include drafting laws that respect the limits of institutional capacity, adopting principled rules about who may be released early and for what reasons, and emphasizing the moral concerns that justify efforts to reduce prison populations

Changing the Sentence without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release

Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than one of every one hundred Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how. Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction