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Abstract:
With no discernible comedic intent, a number of lawyers and law professors have reprised roles from Stanley Kubrick's famous film, Dr. Strangelove, or: How I Learned to Stop Worrying and Love the Bomb. Insisting that the war on terror is too important to be left to anyone other than the President, scorning opponents of torture as sissies afraid to muss their hair, and rapidly collecting promotions and personal citations, these lawyers are teaching America to stop worrying and love the waterboard - and the wiretap, and the ethnic profiling, and the indefinite detention, and all the other strategies of our new war that might be funny if they weren't so deadly serious. This essay reviews Eric Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (Oxford University Press, 2007).

national security, executive power, civil liberties

Abstract:
Sex in prison is a peculiar product of the carceral environment, and far more complicated than suggested by the paradigmatic account of prison rape. That account posits predator and prey: a cruel, sadistic perpetrator who manipulates or violently overpowers a vulnerable victim. This standard narrative exaggerates the extent to which prison sex is coerced through direct physical violence. Further, this account does not situate sexual abuse as a problem of the prison, except to the extent that prisons are blamed for not being prisonly enough: not surveilling enough, not controlling inmates enough, not punishing cruel and sadistic men enough. In fact, as argued in Part I of this Article, prisons produce sexual coercion in significant ways. Part II considers prisoners' efforts to use law to gain sexual safety inside the prison, efforts that have been largely unsuccessful. This legal failure is due in part to a conceptual dichotomy between legal punishment, conceived as an abstract deprivation of rights, and real-world prison practices. This dichotomy underlies Eighth Amendment doctrine and leaves prison conditions largely outside the reach of the constitutional prohibition of "cruel and unusual punishments." Furthermore, current discussions of male prisoner rape have paid little heed to the feminist scholarship on rape law reform. At least two broad insights of the feminist critique of rape law seem particularly critical: First, rape reform literature emphasizes that the wrong of rape is a violation of individual autonomy and personal agency. Second, attempts to protect sexual autonomy require attention to the context in which sex takes place and sexual choices are made. In the context of these feminist insights, Part III of this Article examines critically the Prison Rape Elimination Act and its approach to reform. Although the Act brings public attention to the most violent prison rapes and may produce marginal improvements, it fails either to recognize the complicated forms of sexual coercion or to address the underlying structural problems with the prison. Prosecutions of prison rapists and increased surveillance in prisons are central to the PREA's reform approach. But sexual coercion in prisons is a product of institutions that discipline and punish; we are unlikely to eliminate such coercion with still more discipline and still more punishment.

punishment, criminal law, prisons, Eighth Amendment, rape, legal theory, feminism

Abstract:
Is it coherent to speak of a right to resist justified punishment? Thomas Hobbes thought so. This essay seeks first to (re)introduce Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist benefits (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and consequentialist theorists.

Abstract:
This essay seeks first to (re)introduce Thomas Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist goals (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and utilitarian punishment theorists.

criminal law, punishment theory, Hobbes, right to resist, violence, privilege against self-incrimination

Abstract:
This article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory - an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in liberty and equality, restrict the pursuit of penological goals. Principles of proportionality put the limits into any theory of limited government, and proportionality in the sentencing context is just one instance of these limitations on state power. This understanding of proportionality gives reason to doubt the assertion that determinations of proportionality are necessarily best left to legislatures. In doctrinal contexts other than criminal sentencing, proportionality is frequently used as a mechanism of judicial review to prevent legislative encroachments on individual rights and other exercises of excessive power. In the criminal sentencing context, we should recognize a constitutional proportionality requirement as a limit on penal power.

proportionality, sentencing, criminal law

Abstract:
Exactly how much punishment an offender deserves is something of a metaphysical mystery, or so it has appeared to be in the past. A new discourse of desert seeks to close the gap between philosophical theories and everyday intuitions of deserved punishment, using the former to guide and the latter to legitimize sentencing policies that embrace desert as a limiting principle. This Article examines the operation of desert and finds that in practice, desert has proven more illimitable than limiting. Conceptions of desert are, first, elastic: they easily stretch to accommodate and approve increasingly severe sentences. Desert judgments are also opaque: they appear to be influenced in some cases by racial bias or other extralegal considerations, but such bias is cloaked by the moral authority of desert claims. A better strategy for sentencing reform would be to scrutinize desert claims in the criminal law realm in the same way that post-Rawlsian discussions of distributive justice have scrutinized claims of deserved wealth. We will not and need not eliminate the rhetoric of desert, but we can and should treat it with greater skepticism.

desert, sentencing, punishment, retributivism

Abstract:
Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts. Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

criminal law, punishment, constitutional law, Eighth Amendment, sentencing, moral philosophy, intention

Abstract:
In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls of ideology and unconscious bias. Alon Harel challenges Harcourt’s position, arguing that he is overly skeptical and that instead of embracing chance by default, he should abandon his skepticism for the sake of defending randomization. Ken Levy argues that Harcourt confuses power with right and that it is not possible to embrace randomization without first addressing the proper justification for punishment. Michael O’Hear acknowledges the significant role of luck in contemporary punishment practices, but he argues for channeling chance in more appropriate and useful directions. Alice Ristroph, while also acknowledging the significant role of chance in the criminal law, argues that instead of embracing chance at moments of indeterminacy, it would be better simply not to punish. In a reply, Harcourt responds to these criticisms and argues that we should think of randomization in the punishment field as a way to get beyond punishment as a form of social engineering - as a practice intended to change humans, to correct delinquents, to treat the deviant, or to deter the super-predator. The increased use of chance to resolve issues at moments of indeterminacy, Harcourt argues, could usher in a world in which punishment is chastened by critical reason - an idea, he suggests, worth taking seriously.

punishment, punishment theory, randomization, randomness, chance, luck, lottery, penal lottery, detection lotteries, incapacitation, deterrence, just punishment, moral luck, attempt liability, criminal law, criminal justice, critical theory

Abstract:
In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety-to my mind, the most interesting form-is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I argue, existential anxiety is not always to be regretted, cured, or mocked. Indeed, it may serve as a valuable reminder of the difficulty-and necessity-of giving law to oneself.

Constitutional law, Constitutional crisis, National security, Self-defense, Rule of law, Legal theory, Constitutional theory

Abstract:
This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical analysis that may actually make American sentencing less arbitrary and, importantly, less severe. When the Code retreats to retributive or desert theory, it appeals to indeterminate and unpredictable principles that threaten to undermine the new provisions’ more salutary proposals.

criminal law, sentencing, model penal code, judicial role, desert, punishment theory