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Abstract:
The standard trope in the literature on retributive theory is that mercy serves as an unwelcome interruption of the narrative between crime and punishment. Underlying this theme is the purportedly retributivist notion that the criminal law and its institutions should impose some form of divine or poetic justice for wrongdoing of all different kinds. On this view, the exercise of mercy works a simple failure of justice. But once retribution is better understood - not as revenge or retaliation but as a complex institutional practice arising from and enforcing liberal legal norms of democratic pedigree - its relationship to mercy requires reexamination. That reexamination reveals previously unanticipated problems about the difficulties associated with democratically authorized sites for mercy. The unsettling dimensions of this tension have not been sufficiently appreciated by previous retributivist critiques. Importantly, the retributivist case against mercy still endures - not because mercy is a failure of justice (qua just deserts), but because it is a failure of equality. This realization suggests robust and surprising implications for the responsible design of attractive criminal justice institutions.

Retribution, retributivism, mercy, philosophy of punishment

Abstract:
Since the appearance nearly ten years ago of Professor Toni
Massaro's critique of the feasibility of shaming punishments in
America, scholars have heatedly debated the practicality of
and justifications for a variety of alternatives to incarceration
in publicly managed prisons. A popular assumption on both
sides of the debate over alternative sanctions has been that retributivism, as a conceptual justification for punishment, is
fully compatible with shaming punishments, the most controversial form of alternative sanctions. Indeed, Professor James Whitman has even gone so far as to call shaming punishments
"beautifully retributive." This Article offers a retributivist critique of shaming punishments, and in so doing, challenges
that consensus. Offering a theory called the Confrontational
Conception of Retribution (CCR), Dan Markel not only explains
why retributivism is hostile to shaming punishments, but also how retributivism can commend creative alternatives to the extensive reliance upon public prisons.

Abstract:
In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.

Retribution, retributivism, death penalty, capital punishment, execution, punishment, crime, criminal justice, clemency, mercy

Abstract:
Recently Yale Law School Professor Dan Kahan admitted that, at least with respect to his prior endorsement of shaming punishments, the time has come to recant. Known inside and outside the legal academy for his decade-long defense of shaming as an alternative to incarceration, Kahan took pains to publicly repudiate his earlier embrace of shaming punishments at a symposium convened by the Texas Law Review.

True to form, Kahan recanted in style. Rather than simply capitulate to his critics' arguments about the purported inefficiency or injustice of shaming punishments, Kahan explained that he had anticipated and addressed those challenges in his earlier work. Instead, Kahan identified what was really wrong with shaming sanctions: they suffer from a problem of partisanship. In other words, when shaming punishments are deployed, they signal that society has chosen sides with those who elevate community values or hierarchy over individuality and equality.

Such partisanship is flawed, for Kahan, because it undermines the acceptability of shaming as an alternative to incarceration. In other words, shaming punishments flout what Kahan calls the principle of expressive overdetermination. A law or policy is expressively overdetermined when it bears meanings sufficiently rich in nature and large in number to enable diverse cultural groups to find simultaneously affirmation of their values within it. Because of the social meaning handicap under which shaming labored, Kahan predicted that shaming punishments cannot ultimate provide a viable alternative to imprisonment because they are too socially divisive.

Changing course, Kahan instead argued that we should expand efforts to implement restorative justice programs as a pragmatic alternative to incarceration because such programs do satisfy the criterion of expressive overdetermination and at the same time would help expand our punitive arsenal beyond our orthodox reliance on mass incarceration. In other words, restorative justice has a real hope of achieving political acceptability as an alternative to incarceration.

Kahan's renunciation of shaming punishments and subsequent endorsement of restorative justice are significant developments, at least among those of us who study and teach about the institutions and practices of punishment. Although I applaud Kahan's volte-face on shaming punishments - I was one of the critics who argued shaming was both illiberal and incompatible with principles of retributive justice - I think his new arguments are also unsuccessful, though for different reasons.

This paper unfolds in four parts. Part I provides an overview of the alternative sanctions movement; this Part can be skimmed or ignored by those already familiar with the state of play in this area. The balance of the paper outlines Kahan's views in his recent piece and identifies three problems. First, the basis for Kahan's claim that shaming should be rejected is ultimately best understood as an empirical claim, not a theoretical one, and Kahan adduces little support to sustain the empirical claim that shaming won't secure widespread support. Moreover, even if such support existed, Kahan does not explain why any partisan wrangling over shaming cannot be handled by the institutions of liberal democracy. Second, Kahan's claims against his critics are inaccurate along two important dimensions: first, he mistakenly accuses his critics of status quo bias, and second, he attributes to them truth-insensitive motivations for which there is no evidence. Finally, and most importantly, Kahan's enthusiasm for restorative justice is likely to wane as he realizes that restorative justice, once scrutinized carefully, is prone to manifest the same kind of social meaning handicaps that shaming has experienced. Consequently, Kahan may have to recant - again.

criminal law, criminal justice, shaming, restorative justice

Abstract:
What are punitive damages for? In a companion article,* I argued that states should re-conceive and restructure punitive damages to advance, in part, the public's interest in retributive justice. I called such damages "retributive damages." Although that article provided the rationale and basic structure for retributive damages as an expressly "intermediate sanction," and explained why society should want retributive damages independent of other remedial or penal options, the theoretical nature of the proposal only scratched the surface of how they would operate in practice.

This Article addresses the next critical question: how should punitive damages work? This question is especially timely in light of the Supreme Court's recent decision in Philip Morris v. Williams, which held that juries may not consider the harms to non-parties in determining the amount of punitive damages a defendant must pay.

To make punitive damages work, we must first separate retributive damages from damages meant either to achieve optimal deterrence (to the extent permitted by Philip Morris) or to vindicate the victim's dignity interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.

This Article begins that important task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing two critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance and settlement.

*The companion article, Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction, can be found here: http://ssrn.com/abstract=991865.

criminal law, torts, punitive damages, Philip Morris, optimal deterrence, victims' rights

Abstract:
Not long ago, Professor Cass Sunstein and his co-authors lamented that our legal culture lacks "a full normative account of the relationship between retributive goals and punitive damages." This Article offers that full normative account-through a theory of "retributive damages" as intermediate sanctions.

Under the retributive damages framework, when people defy legal obligations the state has imposed to protect the rights and interests of others, the state may either seek to punish them through traditional criminal law or make available the sanction of retributive damages, which would be credited against any further criminal sanctions imposed by the state for the same misconduct. Accompanied by an intermediate level of procedural safeguards, retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a civil fine determined largely by the reprehensibility of the defendant's misconduct. The base amount of the fine would assess a percentage of the defendant's wealth (or net value for entities) that increases with the reprehensibility of the defendant's misconduct, an assessment informed by guidelines and commentary provided by the state. The total retributive damages award should also include gain-stripping amounts, if any, in excess of compensatory damages, as well as lawyers' fees and a modest and fixed award for the plaintiff for bringing the matter to the public's attention. These payments (to the state, the plaintiff, and the lawyers) together constitute a sensible way to structure the aspect of extra-compensatory damages designed to advance the public's interest in retributive justice.

After offering some background on punitive damages and how retributive justice differs from other rationales for punitive damages (such as optimal deterrence or victim vindication), the Article describes the structure of retributive damages and clarifies the comparative advantages of retributive damages vis-a-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Sunstein's challenge, but also promises to make sense of the Supreme Court's recent and somewhat puzzling holding in Philip Morris USA v. Williams, i.e., that juries may not calculate punitive damages by considering the amount of harm caused to nonparties to the litigation.

A draft of a companion article, How Should Punitive Damages Work? (forthcoming 157 U. Pa. L. Rev. 2009), which focuses on procedural safeguards and some implementation issues, can be found here: http://ssrn.com/abstract=1260019.

Abstract:
This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility.

crime, criminal law, family, criminal justice, criminal procedure

Abstract:
In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.

Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.

capital punishment, Panetti, death penalty, retributive theory, philosophy of punishment, Supreme Court, sentencing law and policy

Abstract:
This article provides a framework for addressing concerns about retributive justice in states recovering from national traumas and it uses South Africa's Truth and Reconciliation Commission (TRC) as its focal point. The article begins by providing an overview of the origins and operations of the TRC, and then explores several conceptual and legal challenges that the TRC faced. These challenges are important to understand for two purposes: first, they highlight the probable criticisms that might emerge as other recovering states consider the particularized amnesty proceedings that were the heart of the TRC; and second, they provide a particular illustration of what I call the social expressivist opposition to the TRC. The paper then engages the TRC's justification of the practice of particularized amnesty, a justification that emanates from the TRC's account of truth, reconciliation, and justice. Here, I scrutinize not only the theory of justice propounded by the TRC, but also the theory of restorative justice offered by some of the TRC's most astute defenders. This examination reveals deficiencies that should renew our interest in the conceptual resources inhering in retributivism as a theory of criminal justice.

There is an obvious tension between the TRC's defence of particularized amnesty and the challenges launched against it by those who adhere to the social expressivist view. The paper thus seeks to mediate this conflict by outlining the confrontational conception of retributivism - an account that I offer to answer not only why retribution for wrongdoing is internally justified and obligatory, but why it is also the sole province of the state in modern society. The theory offered here, which is premised on familiar notions of equal human worth and liberty under law, assures that in the face of known wrongdoing, the state responds as our agent to diminish the evidence of unequal liberty claimed by perpetrators through their actions. One conclusion I draw from this theory is that retributivism, once properly understood, need not be viewed as inextricably dependent upon traditional concepts of proportionality. Thus, under certain circumstances, a retributivist vision of punishment can find an authentic expression in particularized amnesty proceedings. In particular, I indicate how the confrontational conception of retributive justice differs from others insofar as it limits what kind of leniency the state may demonstrate in response to gross violations of human rights. In short, the paper defends the thesis that particularized amnesty proceedings are compatible with retributive justice properly understood.

Abstract:
This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support.

Part II develops a framework for the normative assessment of these family
ties burdens. We first ask how these laws can properly be understood to be
burdens. We then look at these sites synthetically and contextually to
uncover a pattern underlying most of these family ties burdens; namely, they tend to promote voluntary caregiving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call liberal minimalism. We conclude Part II by articulating the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system.

Finally, in Part III, we apply our proposed framework to see under which
conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary caregiving relationships.

This article is the subject of a mini-symposium in the December 2008 issue of the Boston University Law Review. Professors Rick Hills (NYU) and Michael O'Hear (Marquette) will publish responses and we will offer a brief reply.

A draft of Professor O'Hear's response is available here:
http://ssrn.com/abstract=1260891

A draft of our reply is available here:
http://ssrn.com/abstract=1261563

criminal law, family law, criminal justice, criminal procedure, legal theory

Abstract:
This essay raises questions about the appropriate way for states to construe the criminal history of offenders migrating across states.

In a recent article, Professor Wayne Logan asked two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who are now in their midst. The second asks what tradeoffs are implicated as states make their choices regarding how to interpret the pasts of these itinerant offenders as they relate to registration requirements or sentence enhancements for recidivism. Answering the first question, Logan observes the existence of two archetypal approaches a state might adopt when assessing an offender's prior record: an internal one and an external one. Under the internal approach, the use of out-of-state convictions, and any punishment resulting from those convictions, [must] satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law. On this view, for example, a state would not apply a recidivist sentencing enhancement to an offender on the basis of a conviction in another state for conduct that would not be illegal in the forum state. By contrast, under the external approach, a forum state faithfully implements the consequences of the legal judgments of its fellow sovereign states, rather than re-examining those determinations to see if the underlying circumstances (or length of sentence) would have initiated the same legal consequences in the forum state. Consequently, with the external approach, an offender's former actions potentially trigger a marked trail effect in the new forum state. Of course, jurisdictions need not be consistent between recidivism and registration requirements: some states might adopt, for instance, an internal approach with respect to recidivist sentencing enhancements but an external approach to sex offender registration laws.

With respect to the second question, Logan capably shows how the competing internal and external approaches raise difficult theoretical and practical policy questions. Indeed, simply by ventilating the various issues as he does, Logan helpfully foregrounds many otherwise easily obscured value trade-offs, and thus makes a profound contribution to the study of federalism and American criminal law.

This essay registers no real quarrel with Logan's analysis of the scope and nature of criminal justice connectedness. My focus instead is on the normative argument in Logan's apparent preference for the internal approach. I choose this focus not because I am convinced that the external approach is the obviously superior one. Rather, I think Logan overestimates its deficiencies. The goal here, then, is simply to adumbrate a few of the rejoinders available in defense of the external approach against Logan's criticisms. To the extent these responsive arguments are persuasive, then state courts and/or legislatures will be in a better-informed position to select an approach more consonant with their particular concerns and objectives.

Criminal law, criminal justice, criminal history, federalism

Abstract:
Surprisingly, current intellectual property law protects materials that are criminally prohibited or were made as a result of illegal criminal actions. Thus, a filmmaker may commit or induce various illegal acts, record them, and receive and enforce a copyright on the depictions, just as a corporation may patent drugs developed with stolen materials or through illegal experiments on human subjects. That creators who produce works with unclean hands may enjoy the benefits of federally protected monopolies is an oddity that requires scrutiny. This paper argues that a potential remedy to this situation would be the use of compliance conditions for copyright registration and patent grants.

Though compliance conditions could be crafted in various ways, this paper suggests adopting federal legislation that would invalidate a copyright registration or a patent if the creator (or her agent) violated specific criminal laws in the immediate production of the material for which the protection is sought. Once implemented, compliance conditions might stop intellectual property laws from contributing, even remotely, to illegal conduct. This proposal also raises the more general question of when it is desirable to use one governmental function to aid the legitimate purposes of another. Thus, the viability of a compliance standard has potential implications for how we think about the disbursement of government privileges more broadly.

The paper begins by examining how certain intellectual property doctrines already manifest some concern for compliance with various public policies. It then assesses the constitutionality of compliance conditions in intellectual property law and concludes by discussing the mechanics of implementing and administering a compliance standard in the more difficult context of copyright law. The paper ends with a suggestion of how a compliance standard can be justified.

Intellectual property, regulation of behavior, criminal law

Abstract:
This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their careful and subtle analysis of that article.

Additionally, it's worth recapitulating what our bottom-line conclusions are so we can better see if there are any practical disagreements with our critics. Summarizing quickly: we support decriminalization in the cases of parental responsibility laws (based on strict and vicarious liability), bigamy, adultery, and non-payment of parental support; we endorse decriminalizing incest between most adults, though we are divided on certain sub-issues in the incest context; and we are highly skeptical of criminalization in the non-payment of child support context, though concede that more research needs to be done on just how effective criminalization is in achieving compliance. The only area in which we are more or less unconflicted about criminalization is the omissions liability (duty to rescue) context - and, that is where our critics primarily aim their critiques.

This Response focuses on three general points; most of the discussion of those general points, however, comes up in the context of disagreement over the scope and rationale for omissions liability. We begin by explaining how Professors Hills and O'Hear tend to overstate our commitment to voluntariness as a basis for allocating criminal law liability. Second, we address their concern regarding the criminal law's ability to shape people's care-giving choices. Third, we discuss what our commitment to criminal law minimalism requires when it comes to designing family ties burdens. While some differences persist, we hope our Response clarifies a few features of our argument and at the same time narrows the gap between our positions and those of Professors Hills and O'Hear.

A draft of Professor O'Hear's reply can be found at: http://ssrn.com/abstract=1260891

A final version of Punishing Family Status can be found at: http://ssrn.com/abstract=1120877

criminal law, family law, care-giving, voluntarism, vulnerability

Abstract:
In the majority of states indeterminate sentencing schemes prevail -- under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge. Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes. Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

This Article examines the case for, and the implications of, a finding that indeterminate sentencing schemes are impermissible under the federal Constitution. Looking at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, this Article explicates the constitutional restraints on arbitrary and/or discriminatory distributions of penalties, and finds little persuasive basis for the continued survival of indeterminate sentencing schemes. To the extent the Supreme Court is reluctant, as a matter of institutional competence, to make that finding explicit, the Article urges legislators at the federal and state levels to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

Abstract:
Right now, this abstract is a placeholder for a paper I am developing that examines the normative conundra associated with how the passage of time affects the institutional imposition and distribution of punishment in criminal law and procedure. Specifically, I explore what principles have been articulated by courts and other political actors to justify temporal limits on criminal responsibility such as those found in statutes of limitations; determinations of offender competence pre-, during, and post-adjudication; the effects of intervening changes in the law and related issues of retroactivity; and choices regarding consecutive and concurrent sentencing. I am chiefly interested in explaining what the time constraints are in the context of criminal law, and whether they endure bare scrutiny. This paper is still gestating, so suggestions from readers of this abstract are welcome.

Time, punishment, criminal law, criminal procedure