Response: One Market We Do Not Need

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive our overgrown system of incarceration. Just when it seems the United States may finally be turning away from its over-reliance on incarceration, Professor Volokh\u27s prison vouchers proposal runs the risk of kick-starting prison growth

Exhausted

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with the statute. More generally, the Article argues that we should take administrative law seriously in the corrections context

Illich (Via Cayley) On Prisons

This Article considers whether, more than a dozen years after publication of Cayley’s book The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment

ILLICH (VIA CAYLEY) ON PRISONS

This Article considers whether, more than a dozen years after publication of Cayley’s book The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment

Visiting Room: A Response to Prison Visitation Policies: A Fifty-State Survey

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following other nations’ lead in visitation polices will not necessarily increase visitation. Also, liberal visitation policies run the risk of reinforcing the “prison-industrial complex” and normalizing mass incarceration in American culture. But the experiences of other nations demonstrate that liberalized visitation could change American criminal justice for the better

What We Can Learn About Appeals From Mr. Tillman\u27s Case: More Lessons From Another DNA Exoneration

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman\u27s case is a paradigmatic DNA exoneration-involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This Article uses the published opinions affirming Mr. Tillman\u27s conviction-particularly his direct appeal to the Connecticut Supreme Court, and his appeal from the state habeas proceeding-to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman\u27s exoneration reveal any problems with appellate litigation, or is it the product of mistakes in investigation and adjudication that are beyond the purview of appellate courts? There is no question that the root causes of Mr. Tillman\u27s wrongful conviction must be addressed at the investigatory and trial level. In this Article, the Author argues that state appeals courts play an important role in signaling the types of issues that should concern judges, prosecutors, and defense attorneys. Certain features of appellate review that appear in the Tillman opinions-heavy reliance on tools that the Author describes loosely as harm-type and preservation-type analyses, as well as deferential ineffective assistance of counsel standards---can contribute over the long-term to local criminal justice cultures that fail to guard adequately against wrongful convictions

Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In the U.S. Prison System

Journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) is an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of increasing awareness about the growing population of women prisoners

BOOK REVIEW: AMERICAN JERICHO: A BOOK REVIEW OF THE HANGING JUDGE BY MICHAEL A. PONSOR

The Author reviews THE HANGING JUDGE, by Michael A. Ponsor, published by Massachusetts Continuing Legal Education, 2013. Ponsor provides a notable, fictionalized account of the federal criminal system. He uses an imagined death penalty trial to explore themes including issues of race, prosecutorial ambition, and harsh drug sentences. THE HANGING JUDGE’s textured depiction of the legal system makes it particularly appropriate for classroom discussion in courses such as Professional Responsibility and Criminal Procedure