Neuroscience and Sentencing

This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by the insights of science. The question is how to do that: How can neuroscience contribute to the enterprise and what are the pitfalls? This Article represents a few of my preliminary conclusions, but my retrospective analysis is not complete

From "Rites" to "Rights": The Decline of the Criminal Jury Trial

In Representing Justice, Judith Resnik and Dennis Curtis highlight - indeed, speak movingly - of the shift from the "pageantry and spectacle ('rites') entailed in Renaissance adjudication," to the "entitlements ('rights') to processes of a certain kinds that entailed making courts open to anyone who wanted to watch." The transformation from "rites" to "rights" is a process rightly celebrated, but, as the authors caution, in the modem American legal environment, it is at risk of backsliding. My talk illustrates one aspect of this phenomenon, from the modest colonial courthouses, in which American jurors enforced (or not infrequently, rejected) English law, to the modern federal courthouses, where the jury deliberation rooms stand empty. Colonial criminal jury trials involved far more than rituals that reflected the administration of power, although they were surely that. On the one hand, they made transparent the acts of the state in imposing its ultimate authority over the individual, the authority to punish, to take away an individual's liberty, even their life. On the other hand, the colonial citizenry was invited in not merely to be passive observers. They - at least the white men with property among them - were decisionmakers, members of a twelve-person lay jury. Courthouses had to be configured not only to make trials open, but also to permit space for the deliberating jury

The Lower Federal Courts: Judging in a Time of Trump

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude by illuminating the implications of those challenges perhaps for judicial education, law schools, and advocacy. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy

The Lower Federal Courts: Judging in a Time of Trump

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude by illuminating the implications of those challenges perhaps for judicial education, law schools, and advocacy. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy