Public Attitudes Toward Punishment, Rehabilitation, and Reform: Lessons from the Marquette Law School Poll

Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration. In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin. Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety. However, we also found significant divisions in public opinion. For instance, while black and white respondents largely shared the same priorities for the criminal justice system, black respondents tended to see the system as less successful in achieving those priorities. Additionally, we found significant differences in the views of Democrats and Republicans, with Republicans more likely to favor punishment as a top priority and Democrats more likely to support rehabilitation. Finally, we found that survey respondents that hold negative views of African Americans are significantly less likely to support rehabilitation, even after statistically controlling for the other variables in the model

Imprisonment Inertia and Public Attitudes Toward Truth in Sentencing

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge

Appellate Review of Sentences: Reconsidering Difference

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision making. Despite the shortcomings of the standard justifications, this Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, this Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient

The End of Bordenkircher: Extending the Logic of Apprendi to Plea Bargaining

Although the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher v. Hayes addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue more serious charges if the defendant did not plead guilty. The Supreme Court approved of such charging threats based on two considerations: the efficiency benefits of resolving cases by plea instead of jury trial, and the possibility that prosecutors would evade a ban on threats by charging more aggressively in the first instance. The Court’s reasoning, however, is inconsistent with Apprendi v. New Jersey and its progeny. Apprendi rejected the use of both efficiency considerations and evasion concerns as grounds for impairing access to juries. Apprendi instead emphasized a need for robust checks and balances within the criminal justice system. Because the Apprendi line of cases addressed sentencing procedures, not plea bargaining, their relevance to Bordenkircher v. Hayes has thus far escaped notice. The Article argues, however, that the Court should now overturn Bordenkircher v. Hayes in light of the values it embraced in Apprendi. The Article also proposes a new test for evaluating the constitutionality of charging threats