Hoffinger Forum Recap: Katherine Beckett on “Mapping the Shadow Carceral State”

Katherine Beckett, a Professor of Sociology at the University of Washington, came to New York University School of Law on Monday, April 23, 2012 to deliver the final Hoffinger lecture of the academic year. Her talk, entitled “Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment,” outlined the proliferation of new kinds of, and pathways to, punishment in America.

For years, criminal justice scholars and practitioners have shone a light on mass incarceration. The United States now incarcerates more people per capita than any other nation in the world. Beckett argues, however, that if we are to fully understand the nature and power of the carceral state, we must look in the shadows. There she and co-author Naomi Murakawa have found a carceral state that uses civil and administrative mechanisms that lead to sanctions that mimic criminal punishment and/or create pathways to it. These civil and administrative pathways include the compulsory detention of immigrants and asylum-seekers, parole and probation revocation, the indefinite civil confinement of sex offenders, the use of civil contempt charges to jail debtors, and civil social control techniques developed and employed at the local level. Beckett and Murakawa use the term “shadow carceral state” to refer to these developments because they are often invisible, but nonetheless lead to the expansion of the carceral state.

Detention for noncriminal immigrants has grown dramatically over the last several years. In recent years, the U.S. Immigration and Customs Enforcement (ICE) has detained roughly 400,000 alleged immigration law violators each year. Even though the government claims that the detentions are not punitive, Beckett emphasized that the detainees are incarcerated in jails or prison-like conditions. But because the legal process is defined as administrative rather than criminal, legal subjects possess comparatively weak procedural protections.

In the correctional system, Beckett has found the same pattern. In the United States, approximately five million people are on parole or probation. If accused of a technical violation or new crime, parolees and probationers are entitled to a revocation hearing. But these hearings are governed by administrative rather than criminal due process. They also account for an increasing share of all state prison admissions. In 1980, 18% of state prisoners were behind bars for an administrative violation; by 2009, that figure had grown to 33%. Similarly, between 10 and 33 percent of those in jail are there because of a revocation decision. This administrative process has thus fueled the expansion of the carceral apparatus.

Civil pathways to jail and prison have also proliferated. One of these involves the use of civil contempt charges to jail debtors. Mass incarceration has been extraordinarily expensive. Beckett has found that, in response, many states and localities have enacted laws allowing courts to collect fees and fines. Defendants may be charged for the cost of adjudication, state mandated tests, and even legal counsel for the indigent. In 2004, most defendants were assessed fines and fees, including two-thirds of state prisoners and 80% of other felons and misdemeanants. In Washington State, the average fine and fee assessed for a single felony conviction was approximately $2,400, and the maximum is just shy of $12,000, in 2004. These fines, fees, restitution orders, and debts are referred to as legal financial obligations (LFOs).  In addition, many prisons and jails charge for the cost of incarceration and medical treatment. Today, tens of millions of Americans live with this type of legal debt. At the same time, the number of parents with outstanding child support obligations has skyrocketed as a result of the welfare reform policies of the 1990s. Most of these arrears are owed to states in compensation for welfare expenditures, and 70% are owed by parents who make less than $10,000 a year. Both LFOs and child support debts are subject to interest.

Emerging evidence suggests that legal and other debtors – especially child support obligors – are not infrequently jailed for non-payment, and many of these debtors appear to be indigent. Technically, the Supreme Court banned the incarceration of indigent debtors in the first half of the 19th century. But, courts have found an “end run” around this. Specifically, courts now issue civil contempt charges when the debtor fails to comply with court orders to pay. In some such cases, authorities arrest and incarcerate the debtor for contempt of court.

Civil law also fuels detention in the juvenile context. In 1974, the Juvenile Justice and Delinquency Prevention Act (JJDPA) prohibited the detention of status offenders. The program was quite successful reducing juvenile detention by ninety-five percent. In response, state court judges lobbied for an exception—the Valid Court Order (VCO). Although judges can no longer detain a juvenile for a status offense, they can now detain a defendant for his failure to comply with the court’s order not to commit the status offense. The VCO exception  has been adopted by more than 38 states, resulting in the conviction of 5,300 status offenders. In fact, approximately twenty percent of all detained youth today are status offenders.

In closing, Beckett outlined the many civil control mechanisms that states employ at the local level. After the invalidation of the criminal vagrancy and loitering laws in the 1960s and 1970s, states and municipalities have turned to “no contact” orders, gang injunctions, “off limits” orders, and civil extensions of trespass laws to police the socially marginal. The invalidated vagrancy and loitering laws of yesterday have resurfaced in the form of these civil orders.

All of these systems look and feel like punishment, yet they all use civil and administrative law to evade the constitutional protections afforded to criminal defendants. By shining a light, Beckett hopes to force these systems out of the shadows.

– Student Fellows Philip Kovoor (’12) and Diana Wang (’14)

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James B. Jacobs — 2012 Guggenheim Fellow

Congratulations to Center Director James B. Jacobs, who has been named a 2012 Guggenheim Fellow.  The award will support research for Jacobs’ book on criminal records, to be published by Harvard University Press in 2014.

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Hoffinger Forum Recap: Louis Michael Seidman on “Hyper-Incarceration: Is There a Way Out?”

On March 26, 2012, Georgetown Law Professor Louis Michael Seidman delivered the third Hoffinger lecture of the spring semester, entitled “Hyper-Incarceration: Is There a Way Out?”  Seidman began the talk with a quick overview of the familiar underlying facts, statistics, and proportions of the hyper-incarceration problem and noted that the last few years have seen a handful of new developments in incarceration and new efforts to change the situation.  He briefly discussed the dramatic decline in crime rates, the recent leveling out or possibly declining rate of state-level incarceration, and the beginnings of new kinds of legislative reform (alternatives to incarceration, specialty courts) before quickly pointing out the potential dark cloud behind the recent trends’ silver lining. Though we may be on the verge of a substantial change in incarceration rates, the underlying pathologies that fueled hyper-incarceration—racism, classicism, the social collapse of inner city communities and broader economic trends—remain very much in place.  (In his analysis, Seidman cautioned that the conventional definition of racism as a sort of irrational perception held by individuals ignores the serious structural and self-perpetuating aspects of our system of subjugation of the underclass.)

In Seidman’s view, these systems have fueled hyper-incarceration by skewing the way crimes and punishments are ordered and valued.  He used the example of the over-enforcement of criminal laws on a target population.  Such a target population will recognize the fundamental unfairness of the over-enforcement and will refuse to internalize the norms the criminal law seeks to inculcate.  The dominant culture, angry and indignant, will then ratchet up the harsh enforcement to solve this problem, and the system becomes stuck.  The dominant group’s perception of the otherness of the target population becomes self-reinforcing as such a tit-for-tat breakdown occurs.

Pivoting to the recent trends toward stabilization of hyper-incarceration, Seidman briefly discussed some possible explanations for the change.  He cited a new conservative reaction to hyper-incarceration based on the recognition that our prison system is a bloated, and very expensive, government experiment in social engineering.  Seidman then identified three emerging trends that may be functioning as substitutes for hyper-incarceration as a means of social control: (1) stop and frisk policing, (2) non-custodial sanctioning, and (3) specialty courts.

On stop and frisk policing, Seidman concluded that, given the statistics on hit rates and stops actually leading to arrest, the tactic is much more about social control than uncovering criminal activity.  The tactic is not so much calibrated to produce arrests as it is to project police power and control.  Viewed as new, possibly substitute means of social control not meant to lead to incarceration, the tactic’s low hit rate and arrest statistics begin to appear to be an important part of the idea behind the new policing approach.

With respect to non-custodial sanctioning, Seidman noted that in New York, misdemeanor arrests have increased by over 100% in the past couple decades.  These arrests almost never lead to incarceration and are very frequently dismissed.  Instead, Seidman noted, the arrests lead to a new, non-custodial means of social control.  Relying on the work of NYU Sociology PhD candidate Issa Kohler-Hausmann, Seidman described three important aspects of these arrests and proceedings: (i) marking (creating official records of wrongdoing for each arrestee); (ii) procedural hassle (e.g., nights spent in the holding pen between arrest and arraignment; requiring attendance at frequent (and drawn out) court dates); and (iii) performance (referring to any tasks, therapies, educational programs or services a defendant is required to complete before his case is dismissed).  Seidman concluded that each of these three aspects are part of a new and troubling non-custodial exercise of state power.

Finally, on specialty courts, Seidman pointed out several potential problems with the explosive growth in number and breadth of coverage of specialty courts.  The first problem Seidman mentioned is the growing potential for the existence of these courts to legitimate the cruelty toward and blameworthiness of those who do not qualify for a jurisdiction’s specialty courts.  Seidman then reminded the group that much more of a defendant’s life is open to regulation in these courts than under a normal criminal regime: barriers to drinking alcohol, requirements to wear tracking devices, and legal sanctions for banal violations ranging from being late to work to having a bad attitude.  Seidman added that the explosive growth of these courts has been aided by the conversion of two strains of thought: the rhetoric of therapy and the rhetoric of consent.  The first of those two, the rhetoric of therapy, fuels the argument that criminal defendants aren’t evil, but sick.  While potentially less harsh than moralist rhetoric, because the rhetoric of therapy removes blameworthiness from the conversation, there’s no real requirement that the level or degree of government intrusion align with a sense of the blameworthiness of the criminal defendant’s conduct.  The rhetoric of consent, also at play in growth of these courts, relies on the idea that a criminal defendant who is legitimately subject to greater deprivations has the right to consent to lesser deprivations.  A specialty court can require all sorts of regulation when incarceration is the alternative.

Seidman closed the lecture by asking how one should think of these new potential substitutions to hyper-incarceration.  Seidman began by stating that he in no way means to undervalue the sheer brutality of the American prison system.  That said, Seidman noted that we seem to be slipping into a Foucauldian nightmare.  Where prison, even under hyper-incarceration, gives us a clear line between freedom and bondage, these new substitutions spread the deprivation of rights and expanded exercise of government authority across that line.  Seidman noted that we risk slipping into a society where government controls more and more of our lives.  Rather than move toward one side or the other of the terrible choice presented, Seidman closed his remarks on the anger and despair he feels at presented with only those options.

–Student fellow John Cutler (’12)

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Hoffinger Criminal Justice Forum: Monday March 26: Louis Michael Seidman: Hyper-incarceration: Is There a Way Out?

Please join faculty members from NYU and neighboring institutions, policymakers, and practitioners on Monday, March 26 for the Hoffinger Criminal Justice Forum.  Our speaker will be Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center.  His talk is titled “Hyper-Incarceration: Is There a Way Out?”

The Colloquium will be held at Lipton Hall, D’Agostino Building, 108 W. 3rd Street, from 7:45-9:15 pm.  No RSVP is necessary.

Professor Seidman is a nationally known scholar of constitutional and criminal law and procedure, and a member of the American Academy of Arts and Sciences. He has written on a wide range of issues, and is co-author of a constitutional law casebook.  His most recent books are On Constitutional Disobedience (Oxford, 2012); Silence and Freedom (Stanford 2007); Equal Protection of the Laws (Foundation 2002); and Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (Yale 2001).  Professor Seidman graduated from Harvard Law School in 1971, and then served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall. He was a staff attorney with the D.C. Public Defender Service until joining the Georgetown Law Center faculty in 1976. He teaches a variety of courses in the fields of constitutional and criminal law.

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Hoffinger Forum Recap: Sharon Dolovich on “Incarceration American-Style”

On Tuesday, February 28, 2012, Sharon Dolovich, a Professor at UCLA School of Law, delivered the second Hoffinger lecture of the spring semester, entitled “Incarceration American-Style.” Dolovich began by noting the wide gap between American penal practice and the asserted justifications for the penal system. Her lecture offered an alternative account of why we incarcerate, positing that the “animating mission” of the American prison system is to exclude and control those labeled criminals.

In support of this argument, Dolovich pointed to inhumane prison conditions, limited use of parole grants, and collateral consequences of criminal conviction. First, Dolovich argued that prison conditions, including over-crowding, isolation, threats of violence, and lack of programming to address the problems that often lead to incarceration, result in permanent exclusion of prisoners from mainstream society. These conditions foster behavior that will either lead to recidivism or keep the prisoners on society’s social and economic fringes. Similarly, according to Dolovich, prisoners who have been incarcerated for decades and who pose little risk to society are given no meaningful opportunity for parole. Finally, in addition to the many obstacles that recently released prisoners already face, the government imposes further hardships through restrictions on access to benefits, such as public housing and food stamps. Dolovich suggested that these aspects of the penal system cannot be explained by the traditional justifications of retribution, deterrence, and incapacitation. They are, however, consistent with the goal of permanently excluding criminals from society.

Dolovich went on to argue that society would not impose these conditions on people it considered moral equals. She explained that society removes prisoners in a manner that allows others to forget about them. In order to achieve this goal, society must ensure it keeps prisoners completely separate from its other members. Dolovich referred to this phenomenon as “society’s carceral bargain.” This arrangement, which seeks to allow prisoners to be forgotten, implies that those prisoners are not entitled to moral respect and are essentially “non-humans.” Radical individualism seeks to justify this bargain by positing that prisoners are wholly responsible for the actions which led to their incarceration.

Dolovich then turned her attention to the increasing use of solitary confinement and the rise of Supermax facilities. She explained these practices as repeating the logic of exclusion and control within the context of the prison. Inmates are subjected to inhumane conditions that often compound their behavioral problems. Nonetheless, their behavior is viewed by the state as the product of free will. This explanation allows for another carceral bargain to occur in which prisoners who cannot control themselves are taken out of the general population so that prison officials can forget about them.

Exclusion and control is not limited to the penal context. Rather, Dolovich suggested that it has become America’s instinctive response to any perceived threat. She pointed to examples, such as the incarceration of pre-trial detainees, undocumented immigrants, and “enemy combatants.” In these instances, just like in the penal context, society uses prison to separate out people who it does not want to deal with.

Dolovich did, however, end on a positive note. She pointed to the Second Chance Act and the Prison Rape Elimination Act as examples of federal legislation that, not going far enough, creates hope for a new moral conception, by affirming that people in prison should not be subjected to physical abuse and, although they have made mistakes, deserve the opportunity to return to society and try to rebuild their lives.

–Student fellow Michael Pabian (‘12)

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Hoffinger Criminal Justice Forum: February 28: Sharon Dolovich “Incarceration American Style”

Please join faculty members from NYU and neighboring institutions, policymakers, and practitioners on Tuesday, February 28  for the Hoffinger Criminal Justice Forum at 7:45 p.m. in Lipton Hall.  Our speaker will be Sharon Dolovich, Professor of Law at UCLA School of Law.  Her talk is titled “Incarceration American Style.”

Sharon Dolovich is a national expert on the constitutional law of prisons.  Her research focuses on the law, policy, and theory of prisons and punishment, and she teaches courses on prison law, criminal law, and the Eighth Amendment.  She recently published a fascinating empirical study of the LA County Jail’s practice of segregating vulnerable prisoners for their own protection, and has undertaken a critical examination of Eighth Amendment doctrine as it applies to prison sentences and prison conditions. Professor Dolovich has been a visiting professor at Harvard Law School and at the Georgetown University Law Center, and a fellow at the Radcliffe Institute for Advanced Study.  She has testified before both the Commission on Safety and Abuse in America’s Prisons and the National Prison Rape Elimination Commission.  She served as a consultant during the settlement phase of Johnson v. California, 543 U.S. 499 (2005) (the U.S. Supreme Court case concerning racial segregation in the California prisons) and an expert witness in a recent challenge to the policy of racially segregated lockdown in the California prisons.  Dolovich also created and co-edits the SSRN journal Corrections & Sentencing Law & Policy Abstracts.

We hope to see you at this or future colloquia.  A full list of presentations in the series is available at http://crimejustice.law.nyu.edu/hoffinger-forum/.

 

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Hoffinger Forum Recap: Holly Maguigan on “Domestic Violence is a Crime Like Any Other Crime: True or False? False.”

On Monday, January 23, 2012, NYU Professor Holly Maguigan delivered the first Hoffinger lecture of the spring term, entitled “Domestic Violence is a Crime Like Any Other Crime?  True or False?  False.”   In her talk, Maguigan critiqued the criminal justice system’s approach to domestic violence cases over the last several decades, and offered a fresh perspective on how police, prosecutors and statisticians can better prevent,
prosecute and document domestic violence.

According to Maguigan, in the 1970s, the predominant view of domestic violence was that it was a private matter to be resolved from within the home.  Police were instructed to
advise the male aggressor to “go for a walk,” or “have a beer” so he would calm down.  The goal of these interventions was to “keep her safe” and defuse the situation, and only rarely were criminal charges ever filed.  This changed dramatically in the 1980s with the first big push toward pro-arrest policies.  These policies then evolved into mandatory arrest policies.  At the same time, courts began to issue temporary orders of protection in domestic violence cases almost automatically at the defendant’s arraignment.

Maguigan described a continued push, through the 1990s, for domestic violence to be taken more seriously.  A call for an increase in federal funding toward eradicating this
epidemic was answered in Congress’s enactment of the Violence Against Women Act
in 1994.  The trend of increasing interest in fighting domestic violence continues today, as here in New York there is discussion of creating a domestic violence registry, akin to a sex
offender registry.

After outlining the policies and practices that accompany a typical domestic violence call, Maguigan gave a thoughtful critique that established the practical consequences of removing the victim’s choice.  Maguigan explained that “no drop” prosecution policies—enacted to protect women—have, in reality and rather paternalistically, removed the choice of criminal prosecution from the victim, as she is seen as too vulnerable to pressure from a batterer to make a good decision.  The most alarming consequence of this, Maguigan noted, is the common decision by the victim to not call the police in instances of domestic violence out of fear of losing her partner.  When victims know that there is a mandatory arrest and no drop prosecution policy, they do not call.  She went on to discuss that the automatic temporary order of protection gives a de facto divorce in some cases.  Maguigan argued that domestic violence evolved from a crime in which no action was taken, to a crime in which mandatory policies allocate a ‘one size fits all’ approach to a serious problem.

These practices and their consequences have led to statistical race, class and ethnicity disparities according to Maguigan.  As she discussed the demographics of domestic
violence today, she began with a disclaimer: one can find numbers to support any conclusion sought.  Maguigan went on to say that it is important to ask the tough questions—what is being measured and, perhaps most importantly, what is not
being measured.  An example Maguigan presented was the drop in the instances of domestic violence ending in homicides since the 1970’s.  The figures: 1,100 women and
300-400 men seem to be promising, even perhaps showing the decline of domestic
violence; but, it is minimal when compared to non-fatal injuries that create a fuller
picture of the realities of domestic violence.  Numbers of prosecutions, convictions or even
reports of domestic violence omit those victims that do not report, leaving the
statistics detailing incidents of domestic violence incomplete.

Maguigan also discussed her work with domestic violence in India.  She explored the Indian responses to domestic violence that do not always lead to the arrest of the aggressor.  While Indian law has deliberately excluded non-heterosexual women, the criminal interventions are more contextualized, and as a result, are heavily taken advantage of by Indian women.  The broader point being that a contextualized or individualized response works better in instances of domestic violence.  Because domestic violence is a crime unlike any other, it requires thoughtful, ameliorative options that make
sense and are more helpful and empowering to victims in crisis.  Click here to
see the video of Professor Maguigan’s lecture.

–Student fellows Dana Williamson (’14) and Teri Sulmers (’12)

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Hoffinger Criminal Justice Forum, Monday January 23, 2012: Holly Maguigan

Holly Maguigan, Professor of Clinical Law, New York University School of Law will deliver a talk entitled “True or False? Domestic Violence is a Crime Like Any Other Crime. False.”

Holly Maguigan teaches a criminal defense clinic and one in comparative criminal justice as well as a seminar in global public service lawyering and a course in evidence. She is an expert on the criminal trials of battered women. Her research and teaching are interdisciplinary. Of particular importance in her litigation and scholarship are the obstacles to fair trials experienced by people accused of crimes who are not part of the dominant culture. Professor Maguigan is a member of the Family Violence Prevention Fund’s National Advisory Committee on Cultural Considerations in Domestic Violence cases. She serves on the boards of directors of the National Clearinghouse for the Defense of Battered Women and the William Moses Kunstler Fund for Racial Justice. She is a past co-president of the Society of American Law Teachers, the largest membership organization of law professors in the U.S.

All Hoffinger Fora in Spring 2012 will take place in Lipton Hall, D’Agostino Hall, 108 West Third Street, from 7:45 p.m. to 9:30 p.m.  All audiences are invited and encouraged to attend.

NO RSVP IS NECESSARY FOR THIS EVENT.

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2011 IASOC Distinguished Scholar Award

Congratulations to Center Director James B. Jacobs, who received the 2011 Distinguished Scholar Award from the International Association for the Study of Organized Crime (IASOC), in recognition of his sustained and significant scholarly contributions in the field of organized crime.

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Hoffinger Forum Recap: Stephen J. Morse on “The Perils and Promises of Neuroscience for Criminal Law”

On Monday, November 28, 2011, Penn Law (and Psychiatry) Professor Stephen J. Morse delivered the final Hoffinger lecture of the fall semester.  Morse’s opening message to the audience was short and to the point: when it comes to the current and near term promise of neuroscience for criminal law, “curb your enthusiasm.”  Morse cautioned that psychologists and lawyers have rushed to embrace the promises of functional magnetic resonance imaging (“fMRI”)—a neuroscience technology that is still very much in its infancy—without fully acknowledging its limitations.

Morse used the compelling example of Mr. “Oft” (so named for his orbital frontal tumor), a forty-year-old schoolteacher who, after a lifelong interest in pornography, suddenly developed an obsessive interest in child porn, and started molesting his stepdaughter.  On the eve of the start of his prison sentence, Mr. Oft suffered from a headache so severe that he was hospitalized and eventually consulted by a neurologist.  (While in the hospital, he exhibited more and more inappropriate and aberrational behavior, including soliciting sexual favors from nurses.)  It turned out that Oft had a tumor in his frontal lobe.  After tumor resection surgery, Oft’s behavior completely changed and he lost interest in child pornography.  Ten months later, when Oft’s obsession with child porn returned, doctors discovered that, sure enough, his tumor had also returned.

Morse cautions that experts who rush to embrace the existence of the tumor as an explanation for Oft’s actions fail to consider the fact that Oft admitted that he knew pedophilia was wrong, but said that the “pleasure principle” simply overwhelmed his reason when he had molested his stepdaughter.  As Morse explained, when the molestations first started, Oft exhibited enough rationality to know it was wrong and proved to be capable of hiding it from others for quite some time.  Morse had no firm conclusion about whether Oft was criminally responsible for the molestation, but suggested that true understanding of Oft’s case–and his criminal liability–requires this evaluation of his behavior, including his actions and mental states.

In neuroscience, causation is mechanistic everywhere, but in criminal law, we hold some people as responsible and some not.  The reason, Morse claims, is that criminal law is about acting human beings.  At least at present, we cannot “read” our brains or any subregions of them in any way that is meaningful to the types of folk-psychological questions that drive criminal law.  No matter how your brain looks, if you are a rationally capable being, you are held responsible for your actions.

Morse enumerated the weaknesses of neuroscience in its present form, including: (i) the lack of understanding of the connection between the brain, mind and human action; (ii) the usually small sample sizes of the studies that have been conducted; (iii) the use of images that are averaged over a number of subjects; (iv) the ecological validity of the studies; (v) problems with the research design that prevent clear causal inferences; (vi) the lack of replications; and (vii) what Morse terms the “clear cut” problem: that the neuroscience is never better than the behavioral findings and there is usually substantial overlap between the findings among experimental and control subjects.

Yet Morse is not wholly pessimistic.  He listed some potential future contributions from neuroscience.  It can confirm or disconfirm a bit of the folk psychological wisdom that supports a doctrine; suggest reforms of existing doctrines (e.g. insanity); facilitate individual case adjudication; and facilitate more fair and efficient practices, such as more accurate predictions.  Still, the bigger picture of assessing criminality, Morse claims, lies in behavioral observation.  Neuroscience, at least in its current state, adds little to the game.

–Student fellow Diana Wang (‘14)

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Hoffinger Forum Recap: Brandon Garrett on “Convicting the Innocent”

On Tuesday, October 25, 2011, Virginia Law Professor Brandon Garrett delivered the second Hoffinger lecture, highlighting several of the main themes in his new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Garrett located and studied more than 200 trial transcripts of the 250 cases where people were exonerated by post-conviction DNA testing.  He sought to determine how these innocent people—who spent an average of 15 years behind bars—were originally wrongly convicted.  In his talk, he discussed three causes of wrongful convictions that emerged from his research (a subset of the topics reviewed in his book): eyewitness misidentifications, false confessions, and faulty forensic analysis.

Eyewitness misidentifications, which occurred in 76% of the 250 cases, often involved suggestive line-ups and show-ups that can powerfully affect an eyewitnesses’ memory.  In many instances, even if the witness was at first unsure of the accuracy of identifying an assailant, they ultimately testified to being completely certain on the witness stand at trial.  In addition to what Garrett deemed “system variables” like suggestive identification procedures, many cases also involved “estimator variables,” such as having seen an attacker in low lighting or cross-race identification.

Innocent defendants made false confessions in 40 of the 250 cases.  Often these false confessions involved individuals with lessened mental capacity or juveniles.  More disturbing, in 38 of those confession cases, police reported that the confessor had told them specific details of a crime that only the perpetrator could have known.  Given that these individuals were innocent and could not have known those facts, it is clear that the confessions were contaminated.  Garrett suggests recording entire interrogations and reliability review by judges as a step towards preventing convictions based on false confessions.

Finally, Garrett spoke about how forensic evidence was presented at the trials of the wrongfully convicted.  In most of the trials, forensic analysts gave misleading testimony at trial, including erroneous statistics and exaggerated expressions of certainty.  In addition, many of the procedures have never been validated and may have disturbingly high error rates.  Garrett lauded the landmark 2009 National Research Council report that called for a structural overhaul in the research and practice of forensics in the United States.

–Student fellow Christina Bucci (‘12)

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The Third Hoffinger Criminal Justice Forum

Please join faculty members from NYU and neighboring institutions, policymakers, and practitioners on Monday, November 28  for the final 2011-12 Hoffinger Criminal Justice Forum of this fall.   Our speaker will be Stephen J. Morse, Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and Law (Psychiatry Department) at the University of Pennsylvania.  His talk is titled “The Perils and Promises of Neuroscience for Criminal Law”.

Colloquium: 7:45-9:15pm: no RSVP is necessary for the talk.

Stephen J. Morse is no doubt well known to many of you as an expert in criminal and mental health law whose work emphasizes individual responsibility in criminal and civil law. Educated in law and psychology at Harvard, Morse has written for law reviews, journals of psychology, psychiatry, and philosophy, and he has edited collections, including the Primer on Law and Neuroscience (with Adina Roskies, Oxford University Press, forthcoming) and Foundations of Criminal Law ((with Leo Katz and Michael S. Moore, Foundation Press, 2000). He was a contributing author (with Larry Alexander and Kimberly Kessler Ferzan) to Crime and Culpability: A Theory of Criminal Law (Cambridge University Press, 2009),and is working on a new book, Desert and Disease: Responsibility and Social Control. Morse was Co-Director of the MacArthur Foundation’s Law and Neuroscience Project and he co-directed the Project’s Research Network on Criminal Responsibility and Prediction. Morse is a Diplomate in Forensic Psychology of the American Board of Professional Psychology; a past president of Division 41 of the American Psychological Association (the American Psychology-Law Society); a recipient of the American Academy of Forensic Psychology’s Distinguished Contribution Award; a member of the MacArthur Foundation Research Network on Mental Health and Law (1988-1996); and a trustee of the Bazelon Center for Mental Health Law in Washington, D.C. (1995-present).

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The Second Hoffinger Criminal Justice Forum

The second Hoffinger Forum will take place on Tuesday, October 25 as Professor Brandon Garrett delivers a talk on “Convicting the Innocent”.  The forum begins at 7:45 and ends 9:15 in Lipton Hall, 108 West Third Street.  The NYU community is encouraged as well as all audiences are invited to attend the talk, no RSVP is necessary.

Brandon L. Garrett is the Roy L. and Rosamund Woodruff Morgan Professor of Law at the University of Virginia School of Law.  He specializes in studies of DNA exonerations and organizational prosecution, and his book “Convicting the Innocent:  Where Criminal Prosecutions Go Wrong, was published in 2011 by the Harvard University Press.  The New York Times Book Reviewed hailed it as “a gripping contribution to the literature of injustice, along with a galvanizing call for reform, and has been praised as “a fascinating study” (John Grisham), an “invaluable book” (Scott Turow).  Garrett attended Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit and then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, civil rights, civil procedure and constitutional law.

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Hoffinger Forum Recap: Sara Sun Beale on Prosecutorial Independence

On Monday, September 26, 2011, Duke Law Professor Sara Sun Beale kicked off the 2011-12 Hoffinger Criminal Justice Forum season with a lecture entitled “Prosecutorial Independence: Comparing the U.S. to its Common Law Cousins.”  Beale opened her lecture by highlighting the prevalence of elected prosecutors in the United States and the tension between partisan politics and the values of prosecutorial independence and neutrality.

To illustrate the dangers of mixing partisan politics with prosecution, Beale relied on a case that she and other residents of Durham, North Carolina know particularly well: the infamous Duke lacrosse team prosecution, where several players accused of raping an African-American woman were eventually cleared of wrongdoing by DNA evidence.  The local prosecutor, driven by the pressures of a looming election, gave dozens of media
interviews, publicly announcing his conviction that the players were guilty while simultaneously failing to turn over exculpatory evidence.  That prosecutor was subsequently disbarred for his misconduct throughout the investigation.  According to Beale, the U.S. is alone among common law systems in creating this sort of tension—where the pressures and incentives generated by political accountability can directly undermine prosecutorial ethics.

In searching for solutions, Beale examined some of the reforms adopted by our “common  law cousins” over the last several decades.  The most common reform in the countries she discussed is removing the decision whether to prosecute individual cases from officials who are politically accountable.  Many countries, such as Australia and Canada, now have both a politically accountable minister of justice and/or attorney general, and a non-political  Director of Public Prosecutions.  But a few common law countries rely more on the private bar.  In New Zealand, serious cases are initially filed by the police and then taken over by a lawyer in private practice who holds the Crown Warrant in that judicial district.  England is undergoing a transition: the Crown Prosecution Service headed by the Director of Public Prosecutions makes the initial decision to prosecute, but private barristers try the majority of cases.

Beale ended her lecture with an open-ended question that framed the discussion during the question and answer session that followed her lecture: what are the tradeoffs between the prosecutorial independence in other countries and public accountability?  As Beale’s lecture made clear, by making prosecutors directly politically accountable, the United States is positioned near the extreme end of the spectrum with respect to the rest of the world, and we should start questioning whether it is a good place to be.

–Student fellow Diana Wang (‘14)

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Hoffinger Criminal Justice Fora – 2011 – 2012

The 2011-12 Hoffinger Criminal Justice Forum convenes on Monday, September 26, 2011 for the first of seven presentations by distinguished scholars across the nation.  Please join faculty members from NYU and neighboring institutions, policymakers, and practitioners for the first event, “Prosecutorial Independence:  Comparing the United States to its Common Law Cousins,” by Sara Sun Beale, Charles L.B. Lowndes Professor of Law at Duke University School of Law.

All events take place from 7:45pm-9:15pm in Lipton Hall of the D’Agostino building, 108 West 3rd Street.  We hope you will join us for this event or for future colloquia, as listed in the schedule below.

2011-12 Hoffinger Criminal Justice Forum
September 26, 2011 – Sara Sun Beale
Charles L.B. Lowndes Professor of Law, Duke University School of Law
“Prosecutorial Independence: Comparing the U.S. to its Common Law Cousins”

October 25, 2011 – Brandon Garrett
Professor of Law, University of Virginia School of Law
“Convicting the Innocent”

November 28, 2011 – Stephen J. Morse
Ferdinand Wakeman Hubbel Professor of Law, Professor of Psychology and Law in Psychiatry, University of Pennsylvania
“The Perils and Promises of Neuroscience for Criminal Law”

January 23, 2012 – Holly Maguigan
Professor of Clinical Law, New York University School of Law
“True or False?  Domestic Violence is a Crime Like Any Other Crime.  False.”

February 28, 2012 -Sharon Dolovich
Professor of Law, UCLA School of Law
“Incarceration American Style”

March 26, 2012 -Louis Michael Seidman
Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
“Hyper-incarceration: Is There a Way Out?”

April 23, 2012 -Katherine Beckett
Department of Sociology, Law Societies, and Justice Program, University of Washington
“The Politics of Penal Expansion and Penal Reform”

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Breaking the Devil’s Pact: The Battle to Free the Teamsters from the Mob (NYU Press 2011) (James B. Jacobs and Kerry T. Cooperman)

In 1988, despite powerful Congressional opposition, U.S. Attorney Rudy Giuliani brought a massive civil racketeering (RICO) suit against the leaders of the behemoth International Brotherhood of Teamsters (IBT) and more than two dozen Cosa Nostra (LCN) leaders. Intending to land a fatal blow to the mafia, Giuliani asserted that the union and organized-crime defendants had formed a devil’s pact. He charged the IBT leaders with allowing their organized-crime cronies to use the union as a profit center in exchange for the mobsters’ political support and a share of the spoils of corruption. On the eve of what would have been one of the most explosive trials in organized-crime and labor history, the Department of Justice and the Teamsters settled.

Breaking the Devil’s Pact traces the fascinating history of U.S. v. IBT, beginning with Giuliani’s controversial lawsuit and continuing with in-depth analysis of the ups and downs of an unprecedented remedial effort involving the Department of Justice, the federal courts, the court-appointed officers (including former FBI and CIA director William Webster and former U.S. attorney general Benjamin Civiletti), and the IBT itself. Now more than 22 years old and spanning over 5 election cycles, U.S. v. IBT is the most important labor case in the last half century, one of the most significant organized crime cases of all time, and one of the most ambitious judicial organizational reform efforts in U.S. history. Breaking the Devil’s Pact is a penetrating examination of the potential and limits of court-supervised organizational reform in the context of systemic corruption and racketeering.

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The First Hoffinger Criminal Justice Forum – Fall 2011

The first Hoffinger Criminal Justice Forum of Fall 2011 will take place on Monday, September 26th.  Prof. Sara sun Beale, Charles L.B. Lowndes Professor of Law, Duke University School of Law will speak on the topic of “Prosecutorial Independence: Comparing the U.S. to its Common Law Cousins”.

The forum (7:45 pm – 9:15 pm in Lipton Hall) at D’Agostino Hall, 108 West Third Street, between MacDougal and Sullivan Streets.

The NYU community as well as the general public is invited to participate.  No RSVPs are necessary for the forum.

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Radical v. Liberal Criminology: An Afterthought

One of the most interesting moments at this year’s American Society of Criminology meetings in San Francisco was the “reunion” of Tony Platt and Jerry Skolnick during a session on the republishing, with a new forward and preface, of the book The Politics of Protest: Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence, which was originally published in September 1969. Skolnick, Professor Emeritus at UC Berkeley (and now co-director of the Center for Crime and Justice at NYU Law) was on the Berkeley Criminology School faculty, and already famous for his book, Justice Without Trial (1966, 1994) when he was appointed director of the task force on protest of President Johnson’s violence commission. Skolnick hired one of his junior colleagues, Anthony Platt, and a graduate student, Elliott Currie to be his main research assistants and to help with the writing and editing of the report/book; both have become major criminologists as well. Anthony Platt, then an Assistant Professor Criminology at Berkeley, had already written the first edition of The Child Savers, a renowned study of the class origins and purposes of juvenile justice in the early 20th century, that has also recently been republished. Platt was denied tenure, in large part because of his protest activities, and left Berkeley after the Criminology School was eliminated in 1976 to be a Professor of Social Work at California State University, Sacramento until his retirement a few years ago, where he published many other books as well as editing the journal Crime and Social Justice for many years. Elliott Currie, Professor at UC Irvine’s Criminology, Law & Society department, is the author of the classic, Confronting Crime: An American Challenge, as well as many other books.

Given a chance to hear three such renowned criminologists reflect on an ultimately doomed effort to steer America’s response to violence toward completing the institutional reforms begun by the Civil Rights movement and the War on Poverty, it was not surprising that the room was packed. It was perhaps inevitable that most of the attention was on the death of the Berkeley Criminology School. Platt bluntly blamed Skolnick and other liberals on the faculty, for “selling out” the School and its junior faculty, much of which, especially Platt, were openly engaged in the protest politics of Berkeley in those years. Skolnick suggested that the closure (and Platt’s denial of tenure) were decisions taken at the top of the University which neither he, nor other faculty, could do anything to stop. Currie, who has remained very friendly with the other two, kept himself to chairing the session.

I’ll leave to another time a discussion of the actual history. What disappointed me about the session (which was mainly focused on what John Dombrink aptly analogized to the hurt feelings of children to a divorce) was the missed opportunity, buried in Platt’s opening remarks, to reflect on how both liberal and radical criminology were “failures” that had failed to stop the coming of mass incarceration and all the other destructive features of what David Garland has called our Culture of Control. I would love to have heard each of these thinkers on why despite the considerable intellectual and even political resources, progressives could not effectively prevent the policy discussion of violence in America from becoming dominated by thinkers like James Q. Wilson, and his reduction of the problem of violence to crime prevention in his epic and influential Thinking About Crime (1975).

By the time The Politics of Protest was published, Richard Nixon had already been elected on a “Law and Order” platform, and a growing coalition of law enforcement groups and politicians were beginning to coalesce around a politics of capital punishment and mass incarceration in state politics around the country. Still, it would take a decade for the logics of governing through crime to become hegemonic in America, and much of the progressive critique of criminal justice as racist and arbitrary remained salient to many Americans. Overall I suspect that nothing merely criminological could have stopped this trend. Even if Skolnick and Platt had stayed on the same side, and continued to work together along with Currie, perhaps no book from the left could have prevailed over Wilson at the time given the social and political roots of governing through crime.

I’ve always viewed this history and its conflicts with fascination. I was too young to protest in the 1960s (although my parents introduced me to the civil rights and anti-war movements through their participation). I made my way to Berkeley for college in large part drawn by the legacy of protest there, arriving the year after the Criminology School closed. Drawn by the coming catastrophe of mass incarceration, I did graduate work at the Jurisprudence and Social Policy program at Berkeley, (the program that took some extent replaced the Criminology School) where I studied with Skolnick, as well as Shelly Messinger and Caleb Foote (to other prime “liberals” from the Criminology School). Given my own propensity to protest, which earned me three visits to Santa Rita County jail while a student, I’ve always sympathized with the plight of the untenured radical faculty. The fact that Platt was denied tenure despite proven excellence as a teacher and scholar, and only because of his political participation, is a permanent stain on Berkeley’s academic record.

From my perspective now, however, after the war on crime, liberal criminology has remained a more robust and enduring position while radical criminology, especially the highly ideological sort advocated by the Berkeley Criminology school radicals, has, for the most part, proven to be a rhetorical disaster (and would have been a policy disaster had it been implemented). Celebrating convict revolutionaries and denouncing the criminal justice system as it then existed in states like California at the time (far smaller and much more benign than today) as a hopelessly racist and fascist apparatus aimed at preventing popular revolution, had no chance of appealing to ordinary Americans witnessing a genuine wave of both state and private violence, let alone convincing them to support necessary anti-racist reforms. More importantly, it left progressive criminologists with few tools and little credibility to respond to the massive growth of incarceration and the hyper policing of minority urban neighborhoods that would follow in the decades of the 1980s and 1990s. Berkeley’s racial criminology, in short, turned out to be the “boy who cried wolf.”

In contrast, the best of liberal criminology, including Justice Without Trial, recognized the potential of “law” in “law enforcement” to resist the excesses of populist punitiveness and ultimately to rebuild support for insisting that law enforcement serve a “democratic” society and not the other way around. It is telling, in this regard, that when Elliott Currie wrote the first really effective response to the Wilsonite orthodoxy in his 1988, Confronting Crime, he began to rehabilitate the policy premises of liberal criminology while abandoning most of the rhetoric of radicalism.

Today as the war on crime grinds on despite little public rationale for its existence (and mostly inertia to change keeping it in place), it is imperative that we focus on how to reconstruct American society and politics after the tremendous destruction of mass incarceration and governing through crime. That is a struggle which I believe the ideological warfare of 1968-1976 has practically no relevance for, and in which liberals, radicals, and conservatives can find common ground.

Posted by Jonathan Simon, Nov. 22, 2010

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