Beyond rehabilitation: A new theory of indeterminate sentencing

American Criminal Law Review

Volumn 48, Issue 3, 2011, Pages 1247-1292

  O'Hear, Michael M ^a  

^a MARQUETTE UNIVERSITY   (United States)

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EID: 84255190294     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (160)

1. Parole is sometimes confused with probation. Both involve supervision of an offender in the community for a specified period of time, but probation is a sentence given in lieu of imprisonment, while parole is a form of discretionary release that occurs after an offender has already served some portion of a sentence of imprisonment JOAN PETERSILIA, REFORMING PROBATION AND PAROLE IN THE 21ST CENTURY 3, 111(2002). Parole is implemented through a system of indeterminate sentencing. In its classic form, indeterminate sentencing in the United States required the sentencing judge to impose a sentence in the form of a range, with upper and lower limits expressed in terms of years (e.g., a sentence of incarceration for two to four years).
2. JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 13(2005). A parole board was then authorized to release the offender at a point within the range depending on the offender's progress towards rehabilitation.
3. Joan Petersilia, Parole and Prisoner Reentry in the United States, in PRISONS 479, 492 (Michael Tonry & Joan Petersilia eds., 1999).
4. See, e.g., U. S. PAROLE COMM'N, U. S. DEP'T OF JUSTICE, HISTORY OF THE FEDERAL PAROLE SYSTEM 2-3(2003) (discussing repeated extensions of life of the United States Parole Commission beyond the effective date of abolition of federal parole, November 1, 1987).
5. These are listed in an appendix to this Article. To be sure, fear of political backlash seems to be causing corrections officials in many states to be more conservative than anticipated with their new early release authority. See, e.g., Ben Poston, Sentencing Reform Results Fall Short, MILWAUKEE J. SENTINEL, July 10, 2010, at A1 (discussing Wisconsin);
6. see also Cara Buckley, Law Has Little Effect on Early Release for Inmates, N. Y. TIMES, Jan. 30, 2010, at A17, available at http://www.nytimes. com/2010/01/30/nyregion/30parole.html (discussing California, Alabama, and New York).
7. For instance, when Wisconsin enhanced its early-release opportunities in 2009, it replaced its parole board with a new agency called the "Earned Release Review Board." Gregory J. O'Meara, Compassion and the Public Interest: Wisconsin's New Compassionate Release Legislation, 23 FED. SENT'G REP. 33, 34(2010);
8. Graham v. Florida, 130 S. Ct. 2011, 2034(2010).
9. Dirk van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink?, 23 FED. SENT'G REP. 39, 46(2010).
10. Although the holding of Graham was limited to juveniles, the Court's reasoning gave considerable weight to the value of providing long-term inmates with hope that they may eventually be able to secure release based on demonstrated rehabilitation. See, e.g., 130 S. Ct. at 2030 ("What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. ").
11. Over time, one might imagine this principle being used to pare back the categories of offenses and offenders eligible for life without parole, much as the Court has done with respect to the death penalty. See, e.g., Atkins v. Virginia, 536 U. S. 304, 321(2002) (banning execution of the mentally retarded);
12. Enmund v. Florida, 458 U. S. 782, 798(1982) (holding death penalty impermissible for felony-murder defendant who did not kill and did not intend to kill).
13. For a more thorough discussion of the path the Court might follow in expanding Graham, see Michael M. O'Hear, The Beginning of the End of Life Without Parole?, 23 FED. SENT'G REP. 1, 2(2010).
14. The term "indeterminate sentencing" is often confused with discretionary sentencing. Discretionary sentencing refers to a system in which the sentencing judge has discretion to select a sentence within a wide statutory range associated with the offense of conviction, while indeterminate sentencing refers to a system in which other actors (classically, the members of a parole board) have substantial authority post-sentencing to determine the actual release date from prison. Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L. J. 377, 382-84(2005). Thus, an indeterminate sentencing system might or might not be a discretionary one, and vice versa.
15. See, e.g., Thomas J. Hammer, The Long and Arduous Journey to Truth-in-Sentencing in Wisconsin, 15 FED. SENT'G REP. 15, 15 (describing truth-in-sentencing legislation adopted in Wisconsin in 1998).
16. Although retributivism has deep historical roots, see, e.g., Robert Blecker, Less Than We Might: Meditations on Life in Prison Without Parole, 23 FED. SENT'G REP. 10, 11(2010) (noting expression of retributive idea of proportionality in Deuteronomy and the Magna Carta)
17. DOUGLAS LIPTON ET AL., THE EFFECTIVENESS OF CORRECTIONAL TREATMENT AND WHAT WORKS: A SURVEY OF TREATMENT EVALUATION STUDIES 20(1975).
18. Michael M. O'Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. CIN. L. REV. 749, 757-58(2006).
19. See Andrew von Hirsch, Penal Theories, in THE HANDBOOK OF CRIME AND PUNISHMENT 659, 666 (Michael Tonry ed. 1998) ("Criminologists' interest in desert dates from the mid-1970s.... Once broached, the idea of desert quickly became influential.").
20. John Bronsteen et al., Happiness and Punishment, 76 U. CHI. L. REV. 1037, 1070(2009);
21. Russell L. Christopher, Deterring Retributivism, 96 NW. U. L. REV. 843, 845-47(2002);
22. cf. AMERICAN LAW INSTITUTE, MODEL PENAL CODE: SENTENCING, TENTATIVE DRAFT NO. 1, at 30(2007) (noting that proposed revisions to sentencing provisions of the Model Penal Code are based on Norval Morris's theory of limiting retributivism, although the revisions do not use the term " retributivism").
23. See CHRISTINE S. SCOTT-HAYWARD, VERA INSTITUTE OF JUSTICE, THE FISCAL CRISIS IN CORRECTIONS: RETHINKING POLICIES AND PRACTICES 3(2009) ("Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States-In FY2008... states spent an estimated $47 billion of general funds on corrections, an increase of 303 percent since 1988.") (citations omitted).
24. The fact that the federal government has displayed less interest than many states in strengthening early-release opportunities doubtlessly owes something to the facts that federal corrections spending is a comparatively small portion of the federal budget, see Kevin Johnson, 2011 Budget Gives Federal Prisons $528M, USA TODAY, Feb. 4, 2010, available at http://www.usatoday.com/news/washington/2010-02-03-prisonbudget-N.htm (noting that the Obama Administration sought $528 million for the Bureau of Prisons, out of total budget of $3.8 trillion), and that budget deficits create less pressure at the federal level due to an absence of balanced-budget requirement and federal control over the monetary supply
25. see National Conference of State Legislatures, BCSL Fiscal Brief: State Balanced Budget Provisions 2(2010), available at http://www.ncsl.org/documents/ fiscal/StateBalancedBudgetProvisions2010.pdf ("Most states have formal balanced budget requirements with some degree of stringency-").
26. Policymakers' comfort with early release has doubtlessly been enhanced by a new generation of risk assessment and management techniques, see, e.g., JUDITH GREENE & MARC MAUER, THE SENTENCING PROJECT, DOWNSCALING PRISONS: LESSONS FROM FOUR STATES 34-36(2010) (describing the Michigan Prisoner Reentry Initiative, in which the Michigan Department of Corrections recently achieved increased parole approval rates following institution of measures designed to increase confidence of the parole board, including data-driven risk assessment and improved case management of parolees), as well as the development of new forms of rehabilitative programming that have moved criminologists beyond the despair of the 1970s
27. see Michael Tonry & Joan Petersilia, American Prisons at the Beginning of the Twenty-First Century, in PRISONS 1, 8 (Michael Tonry & Joan Petersilia eds., 1999).
28. Different jurisdictions have different rules with respect to parole eligibility. For purposes of this example, I follow the old federal parole rules, which generally provided for release after between one-third and two-thirds of the sentence had been served. KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 20(1998). Other jurisdictions have adopted rules that are structurally similar, but different in the release-date specifics.
29. See, e.g., JUSTICE POLICY INSTITUTE, THE RELEASE VALVE: PAROLE IN MARYLAND 7(2009) (discussing the Maryland system and noting that "[p]eople convicted of a nonviolent offense are eligible for parole after serving a quarter of their sentence, while individuals convicted of a violent offense are eligible after serving half of their sentence for the violent offense, or one quarter of the total aggregate sentence if there is more than one conviction").
30. See R. A. Duff, Dangerousness and Citizenship, in FUNDAMENTALS OF SENTENCING THEORY: ESSAYS IN HONOR OF ANDREW VON HIRSCH 141, 148-49 (Andrew Ashworth & Martin Wasik eds., 1998) (noting this retributive objection to parole).
31. Cf. Kevin R. Reitz, Questioning the Conventional Wisdom of Parole Release Authority, in THE FUTURE OF IMPRISONMENT 199, 206 (Michael Tonry ed. 2004) ("Through the 1980s and 1990s, parole boards across the country became visibly more risk averse in their release decisions, often jolted a single but terrifying episode of criminality....").
32. I do not here attempt any systematic defense of retributivism, and I acknowledge that there are many important objections to retributivism, perhaps most importantly those founded on the link between the retributive urge and what Nietzsche referred to as the emotions of ressentiment (resentment, fear, anger, cowardice, and so forth). See MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 119-20(1997) ("I think the most serious objection to retribution as a theory of punishment lies in the emotional base of retributive judgments.").
33. For an eloquent account of how the ugly emotions associated with retributivism have negatively affected American penal policy for the past generation, see generally James Q. Whitman, A Plea Against Retributivism, 7 BUFF. CRIM. L. REV. 85(2003). Michael Moore has offered the most effective response to the Nietzschean critique of retributivism.
34. See Matt Matravers, Introduction, in PUNISHMENT AND POLITICAL THEORY 1, 1 n. 2 (Matt Matravers ed., 1999) ("[T]he labels 'consequentialist' and 'retributive' are of increasingly little use as the theories that they are meant to group together have become so diverse.").
35. Communicative approaches are sometimes subdivided into expressive theories, which tend to emphasize the role of punishment in "giving voice to the abhorrence of the community, " and more "genuine" communicative theories that focus on the idea that punishment offers "some form of argument... to the offender to explain that she has done wrong and to challenge her to answer that claim." Matt Matravers, "What to Say?" The Communicative Element in Punishment and Moral Theory, in PUNISHMENT AND POLITICAL THEORY 108, 109 (Matt Matravers ed., 1999). It is the latter approaches, of which Duff's theory is a leading example, that are of greatest interest to me in this Article.
36. In recent decades, among retributive theorists, the main competitor to the communicative approaches has been the "unfair advantage" theory, which holds that the wrongfulness of crime lies in the offender's decision to take extra liberty for himself beyond that which has been permitted to him through our system of mutual restraint; punishment is then seen as a taking back of liberty that restores the balance. Steven P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801, 1836 n. 149(1999).
37. Herbert Morris provided a seminal statement of this theory in Persons and Punishment, 52 MONIST 475(1968). However, this approach has been widely criticized for failing to account for what really strikes us as wrong about many crimes; "unfairness, " for instance, does not seem really to capture what is wrong about rape or murder.
38. See, e.g., R. A. Duff, Punishment, Communication, and Community, in PUNISHMENT AND POLITICAL THEORY 48, 48 (Matt Matravers ed., 1999) ("One theme in the 'retributive revival' of the last two decades has been that of punishment as a communicative practice.... [W]hat crime deserves or makes appropriate is a response which punishment communicates to the criminal.");
39. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1686(1992) ("In short, retribution is a response to a wrong that is intended to vindicate the value of the victim denied by the wrongdoer's action through the construction of an event that not only repudiates the action's message of superiority over the victim but does so in a way that confirms them as equal by virtue of their humanity.");
40. John Kleinig, The Hardness of Hard Treatment, in FUNDAMENTALS OF SENTENCING THEORY: ESSAYS IN HONOR OF ANDREW VON HIRSCH 273, 275 (Andrew Ashworth & Martin Wasik eds., 1998) ("[P]unishment has a distinctively expressive character. It involves a stigmatizing condemnation of the punished. It does so, because the person punished has been judged to be guilty inter alia of some moral wrongdoing, that is, of violating basic conditions of our human engagement.");
41. Dan Markel, Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 NW. U. L. REV. 1163, 1184(2009) ("Retributive punishment for legal wrongdoing is justified in part because it communicates to the offender a respect for his dignity by treating him as a responsible moral agent.");
42. See, e.g., Anthony Bottoms, Five Puzzles in von Hirsch's Theory of Punishment, in FUNDAMENTALS OF SENTENCING THEORY: ESSAYS IN HONOR OF ANDREW VON HIRSCH 53, 80 (Andrew Ashworth & Martin Wasik eds., 1998) ("[Retributivist theories] may justify punishment even when it has no preventive utility.");
43. On the other hand, as some commentators have observed, there may be some tension between liberalism and the moralism that seems central to much retributive theorizing. See, e.g., Leo Zaibert, Punishment, Liberalism, and Communitarianism, 6 BUFF. CRIM. L. REV. 673, 685(2002).
44. See, e.g., R. A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 139(2001) (defending the flexible "negative" version of proportionality because it "gives sentencers more room to attend to the concrete particularities of the crime, without worrying about rendering it commensurable with all other crimes in terms of its seriousness, and to choose between a wider range of penalties, without worrying about rendering them all commensurable in terms of their severity.");
45. NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 75(1974) ("The concept of desert is a necessary but not sufficient condition of the punishment of the crime. Desert is, of course, not precisely quantifiable.");
46. See Paul H. Robinson, The A. L. I.'s Proposed Distributive Principle of "Limiting Retributivism ": Does It Mean Anything in Practice Other Than Pure Desert?, 7 BUFF. CRIM. L. REV. 3, 10(2003) ("Contrary to the assumption of the original advocates of 'limiting retributivism'-that desert provides only vague outer limits on punishment-desert has quite specific demands"). For reasons that I have explored elsewhere, I suspect that Robinson's claim is overstated.
47. Michael M. O'Hear, Plea Bargaining and Procedural Justice, 42 GA. L. REV. 407, 441(2008);
48. see also Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. & CRIMINOLOGY 1293, 1308(2006) ("[T]he remarkable consistency with which people speak of punishments as deserved, even as those punishments expand in scope and severity, suggests that the concept of desert is quite elastic").
49. See, e.g., Andrew von Hirsch, Punishment, Penance, and the State, in PUNISHMENT AND POLITICAL THEORY 69, 69-70 (Matt Matravers ed., 1999) (noting agreement with Duff that punishment should be conceptualized in communicative terms, but disagreeing with Duff's claim that "that the hard treatment component of the penal sanction can itself be explained in reprobative terms").
50. For Duff's reply to von Hirsch's critique, see generally R. A. Duff, Response to von Hirsch, in PUNISHMENT AND POLITICAL THEORY 83 (Matt Matravers ed., 1999).
51. See, e.g., Kyron Huigens, On Aristotelian Criminal Law: A Reply to Duff, 18 NOTRE DAME J. L. ETHICS & PUB. POL'Y 465, 468(2004) ("[N]o one working on punishment theory can ignore Duff's work.");
52. Peter Western, Offences and Defences Again, 28 OXFORD J. LEGAL STUD. 563, 563(2008) ("Antony Duff is widely regarded as the leading criminal law theorist in the Anglo-American world today-");
53. R. A. Duff, Guidance and Guidelines, 105 COLUM. L. REV. 1162, 1182(2005).
54. See, e.g., JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 70-71(2003) (discussing study showing better success by inmates released through discretionary parole than as a result of mandatory release requirements, even controlling for offense type and other variables, and arguing that the study "buttresses" the view that discretionary parole "ultimately leads to greater public safety, since it encourages both inmates and prison officials to focus more heavily on reintegration programs");
55. Mandeep K. Dhami et al., Adaptation to Imprisonment: Indigenous or Imported?, 34 CRIM. JUST. & BEHAVIOR 1085, 1085(2007) ("[D]isciplinary infracations in prison have been found to be predictive of recidivism, whereas participation in prison education programs and maintenance of family ties are associated with reductions in recidivism." (citations omitted)).
56. Chad M. Oldfather, Heuristics, Biases, and Criminal Defendants, 91 MARQ. L. REV. 249, 255-56(2007).
57. On the other hand, there are good reasons to doubt that offenders are very responsive to differences in potential periods of imprisonment; the more immediate risks of getting caught and convicted likely overwhelm the significance of the more remote and speculative risks of being incarcerated for, say, four years instead of two years. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW, U. L. REV. 453, 458-64(1997)
58. JUSTICE POLICY INSTITUTE, supra note 22, at 16.
59. For a helpful review and insightful critique of the literature, see generally Anders Kaye, Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility, 37 FLA. ST. U. L. REV. 539(2010). "Compatibilists" would likely discount the concern I articulate here. As Kaye argues, however, compatibilists may assume too quickly that their position reflects common moral intuitions.
60. John Monahan, The Future of Violence Risk Management, in THE FUTURE OF IMPRISONMENT 237, 253 (Michael Tonry ed., 2004). Many states currently use actuarial parole guidelines that are based on the United States Parole Commission's "salient factor score, " which has demonstrated reliability in identifying high-risk offenders.
61. Mercy is a controversial proposition among retributivists, see, e.g., Dan Markel, Against Mercy, 88 MINN. L. REV. 1421(2004)
62. On the other hand, developing the prison/parole equivalence formula might be quite difficult. Relevant research is still "in its nascent stages." Christopher Slobogin & Mark R. Fondacaro, Juvenile Justice: The Fourth Option, 95 IOWA L. REV. 1, 56(2009). Moreover, Dan Kahan argues that there is a crucial expressive incommensurability between imprisonment and other punishments: "Imprisonment is an extraordinarily potent gesture of moral disapproval; because of the symbolic importance of individual liberty in American culture, there is never a doubt that society means to condemn someone when it takes that person's freedom away."
63. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 384(1997); (Pubitemid 127445624)
64. For that reason, Kahan is skeptical of the claim that "all forms of punishment are interchangeable along the dimension of severity or 'bite.'" Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 593(1996). If Kahan is correct, then efforts to find a prison/parole equivalence formula may be futile, at least with respect to the offenses that society most wishes to condemn. (Pubitemid 126408719)
65. W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109 COLUM. L. REV. 893, 902-03(2009) (discussing practice in California).
66. Michael M. O'Hear, Appellate Review of Sentences: Reconsidering Deference, 51 WM. & MARY L. REV. 2123, 2158(2010). But I offered this observation in support of a more rigorous review of sentencing decisions by collegial appellate courts, and it would seem preferable for appellate courts to perform any necessary reweighing in the course of the normal appellate process rather than to have a parole board do the reweighing after the offender has already served much time in prison, which may create a longer period of uncertainty and which misses the opportunity to provide meaningful relief for excessively harsh sentences. Additionally, as I have argued at length elsewhere, the individual sentencing judge's knowledge of the local community in which the offense occurred may provide the judge with an important advantage in assessing offense severity that often outweighs any disadvantages relative to a more centralized body.
67. See Greenholtz v. Inmates of Neb. Penal and Corn Complex, 442 U. S. 1, 15(1979) (noting that "the behavior record of an inmate during confinement is critical" to parole decisions).
68. See Alice Ristroph, Respect and Resistance in Punishment Theory, 97 CALIF. L. REV. 601, 604-05(2009) ("[W]e respect the criminal by acknowledging that punishment, though perhaps justified by societal interests, is hardly in the condemned man's interest or legitimate from his perspective. The right to resist [punishment] grounds an account of punishment that is arguably more honest, more egalitarian, and more uniformly respectful than the familiar retributive and utilitarian accounts.") (citation omitted).
69. See, e.g., Cutter v. Wilkinson, 544 U. S. 709, 716(2005) ("Congress documented, in hearings spanning three years, that 'frivolous or arbitrary' barriers impeded institutionalized persons' religious exercise.") (citation omitted);
70. Turner v. Safley, 482 U. S 78, 98(1987) (holding unconstitutional the prison rule prohibiting inmates from getting married without a superintendent's permission and noting the existence of "obvious, easy alternatives... that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives") (citation omitted);
71. Franklin E. Zimring & Gordon Hawkins, Democracy and the Limits of Punishment: A Preface to Prisoners' Rights, in THE FUTURE OF IMPRISONMENT 157, 170 (Michael Tonry ed., 2004) ("[W]hat [prison administrators] tend to favor is systems where small comforts are available to prisoners but only at the discretion of those who run the prisons.").
72. Under the standard, deferential test used by the Supreme Court to determine the constitutionality of prison regulations, regulations are permissible if they are "reasonably related to legitimate penological interests" and are not an "exaggerated response" to such objectives." Beard v. Banks, 548 U. S. 521, 528(2006) (plurality opinion)
73. (quoting Turner, 482 U. S. at 87). We may also be appropriately concerned about exclusionary and degrading failures to exercise power, e.g., failures to protect inmates from sexual victimization at the hands of other inmates, which appears to be a substantial problem in some prisons.
74. See Tess M. S. Neal & Carl B. Clements, Prison Rape and Psychological Sequelae: A Call for Research, 16 PSYCHOL. PUB. POL'Y & L. 284, 285(2010) (discussing data on incidence of prison rape). Sexual victimization further stigmatizes and isolates some inmates within the prison culture.
75. See JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 8(2003) ("[In Europe], offenders who do wind up in prison are subjected to a regime markedly less degrading than that that prevails in the United States-Prison uniforms have generally been abolished. Rules have been promulgated attempting to guarantee that inmates be addressed respectfully-Rules have also been promulgated protecting inmate privacy-[T]hese measures include... the principle that life in prison should approximate life in the outside world as closely as possible.").
76. Anthony E. Bottoms, Interpersonal Violence and Social Order in Prisons, in PRISONS 205, 208 (Michael Tonry & Joan Petersilia eds., 1999) (noting, for instance, that "in-cell televisions are no longer a rarity in prisons"). This is not to downplay the importance of the (probably unnecessarily high) barriers to contact between inmates and their family members, such as poor treatment of visitors by prison officials and exorbitant fees for telephone use.
77. ROGER MATTHEWS, DOING TIME: AN INTRODUCTION TO THE SOCIOLOGY OF IMPRISONMENT 33 (2d ed. 2009) (describing "podular design"). Ironically, the new design approach was intended to further rehabilitative ends, but rehabilitation fell out of favor just as the new approach became established.
78. Chase Riveland, Prison Management Trends, 1975-2025, in PRISONS 163, 172-74, 184 (Michael Tonry & Joan Petersilia eds., 1999).
79. Thomburgh v. Abbott, 490 U. S. 401, 407(1989)
80. (quoting Turner v. Safley, 482 U. S. 78, 84(1987)). The Supreme Court embraced this principle and rejected the so-called "hands off' approach in the 1970s.
81. See Hudson v. Palmer, 468 U. S. 517, 555(1984) (Stevens, J., dissenting).
82. For the contrasting glass-is-half-empty view, see, e.g., DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 178(2001) ("The prison is used today as a kind of reservation, a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety."). I do not mean here to reject the pessimistic characterizations of Garland and other critics of our penal practices, but I would suggest that there are some hopeful signs, too, and that public preferences do not seem consistent with the vision of imprisonment as a form of exile or simple warehousing.
83. 468 U. S. 517(1984).
84. (quoting Paul C. Gianelli & Francis A. Gilligan, Prison Searches and Seizures: "Locking" the Fourth Amendment Out of Correctional Facilities, 62 VA. L. REV. 1045, 1069(1976))).
85. CRAIG HANEY, REFORMING PUNISHMENT. PSYCHOLOGICAL LIMITS TO THE PAINS OF IMPRISONMENT 219(2006). Additionally, researchers have identified some groups of inmates with special vulnerabilities, such as those with mental illness or developmental disabilities, who may be more likely to experience prison "as an especially painful, intolerant, and even intolerable place."
86. Hudson, 468 U. S. at 553 (Stevens, J., dissenting).
87. See, e.g., Mabra v. Schmidt, 356 F. Supp. 620, 630 (W. D. Wis. 1973) ("I believe that the time has come in this corner of human experience, as it came much earlier in others, for the courts to make with careful and deliberate firmness, the limits upon permissible governmental interference in the lives of the people. To the degree that the present correctional system cannot withstand this searching inquiry, it should be terminated, better soon than late.").
88. See, e.g., Johnson v. California, 543 U. S. 499, 509(2005) (holding that inmate challenging racial segregation in prison could get benefit of strict scrutiny test under Equal Protection Clause).
89. Donald Braman, Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America, 53 UCLA L. REV. 1143, 1145-46(2006).
90. A well-known example of the sort of program that seems to involve inmates in publicly approved, pro-social activities is the training of dogs. Colorado's program, for instance, is described here: http://www.coloradoci.com/ serviceproviders/puppy/index.html?intro (last visited June 1, 2011).
91. Perhaps most importantly, Stevens sometimes invoked traditional rehabilitative considerations that are in tension with Duff's more retributive framework. See, e.g., Hudson v. Palmer, 468 U. S. 517, 552(1984) (Stevens, J., dissenting) (discussing adverse consequences of denying inmates any residuum of privacy).
92. See, e.g., 28 C. F. R. § 541.15 (b) (2010) ("Each [federal] inmate so charged [with violating a prison rule] is entitled to an initial hearing before the [Unit Discipline Committee], ordinarily held within three work days from the time staff became aware of the inmate's involvement in the incident.") (emphasis added);
93. Although criminologists have long theorized that the prison environment contributes to inmate misconduct, little rigorous empirical work has been done to support the proposition. Scott D. Camp et al., Fed. Bureau of Prisons, THE INFLUENCE OF PRISONS ON INMATE MISCONDUCT. A MULTILEVEL INVESTIGATION 2-4(2003), available at http://www.bop. gov/news/research-projects/published-reports/ prison-mgmt/oreprcamp-rnis.pdf. However, one recent study of misconduct in federal prisons found statistically significant correlations between one or more forms of misconduct and several prison-level variables, including the average security level of inmates, crowding, and racial integration.
94. Travis W. Franklin et al., Examining the Empirical Relationship Between Prison Crowding and Inmate Misconduct: A Meta-Analysis of Conflicting Research Results, 34 J. CRIM. JUST. 401, 408(2006). The authors instead suggest that "inmate violence and general misconduct stem from poor managerial skills, where guards are not properly trained and prison security is compromised."
95. For a description of disciplinary segregation and its effect on inmates, see COMM'N ON SAFETY AND ABUSE IN AMERICA'S PRISONS, CONFRONTING CONFINEMENT 57-59(2006). The number of inmates in disciplinary segregation has been growing rapidly, and anecdotal evidence suggests that inmates are frequently segregated for minor rules violations and that stays in segregation can last for months or even years.
96. 442 U. S. 1(1979).
97. This aspect of Greenholtz was cast into doubt, but not clearly overturned, by Sandin v. Conner, 515 U. S. 472(1995). Sandin was a prison discipline, not a parole, case. However, in Sandin, the Court expressed considerable dissatisfaction with a line of procedural due process cases, including Greenholtz, in which it had parsed state statutes for discretion-cabining language in order to determine whether the plaintiffs had a constitutionally protected liberty interest.
98. Greenholtz, 442 U. S. at 14-15.
99. Outside the parole context, the Court has not been entirely clear or consistent as to what triggers each of the core constitutional criminal procedure protections. For instance, a well-known recent line of cases holds that defendants are entitled to have "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" found by a jury. Apprendi v. New Jersey, 530 U. S. 466, 490(2000).
100. However, the Court has declined to require jury fact-finding for mandatory minimum sentences, Harris v. United States, 536 U. S. 545, 551-52(2002)
101. or with respect to a decision to impose consecutive sentences, Oregon v. Ice, 555 U. S. 160, 160(2009). Perhaps a decision to delay release could be similarly conceptualized as incremental punishment within an otherwise permissible maximum. Moreover, the Court has not as yet extended the Apprendi principle to other constitutional rights, such as the right to confront accusers. In a provocative recent article, David Ball argues that Apprendi ought to be understood as establishing a distinction between "retributive facts" and facts relating to public safety; in Ball's view, a jury must find retributive facts, that is, facts that form the basis for a judgment of condemnation.
102. (discussing Cunningham v. California, 549 U. S. 270(2007)). As Ball also notes, any effort to extend Apprendi to parole decisions would run into the objection that the Sixth Amendment (the constitutional source of the right to jury fact-finding) only applies to "criminal prosecutions, " and it is not clear that a parole decision ought to be regarded as part of the "prosecution. "
103. See, e.g., Blanton v. City of N. Las Vegas, 489 U. S. 538, 541(1989) (finding no right to jury trial for DUI offense where maximum penalty is prison term of six months).
104. Sergio Herzog, Plea Bargaining Practices: Less Covert, More Public Support?, 50 CRIME & DEUNQ. 590, 590-91(2004).
105. see Shari Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 BUFF. L. REV. 717, 733-36(2006) (summarizing research on jury representativeness)) are substantially better qualified to act as the conscience of the community than parole boards appointed by politically accountable officials.
106. Even with this structure, however, the severity of the cumulative responses to continuing misconduct will be somewhat arbitrarily constrained by the severity of the underlying sentence. For instance, imagine two equally incorrigible inmates, one of whom has been sentenced to a short term for a relatively minor offense and the other of whom faces a much longer sentence for a much more serious offense. Although their behavior in prison may merit equal condemnation, the parole board will run out of opportunities to deny parole much more quickly as to the first of the two inmates. On the other hand, if the first inmate's prison violations are sufficiently serious, then it might be possible to prosecute them as fresh crimes in their own right (e.g., assaults of guards or fellow inmates). And if the violations are less serious, then satisfactory punishment may be available through standard prison disciplinary processes. This is not say that the perfect parity in the treatment of equally incorrigible inmates can consistently be achieved through or around a retributive delayed-release mechanism, but the magnitude of disparities does not necessarily seem large relative to current norms. See U. S. SENT'G COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM xi-xvi (2004) (discussing ongoing disparity problems in the federal system).
107. Cf. Francis T. Cullen et al., Public Opinion About Punishment and Corrections, 27 CRIME & JUST. 1, 42(2000) (discussing studies showing that offenders "rate certain intermediate penalties as more severe than limited stays in prison").
108. Christy A. Visher, Returning Home: Emerging Findings and Policy Lessons About Prisoner Reentry, 20 FED. SENT'G REP. 93, 96(2007);
109. DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA 165-67(2004);
110. see also PATRICK A. LANGAN & DAVID J. LEVIN, U. S. DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 1(2002) (based on a study of prisoners released from fifteen states in 1994, concluding that 67.5% were rearrested for a new offense within three years of their release).
111. Cf. Dan Markel & Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907, 969-70(2010) ("Given our focus on the idea of communicating the wrongness to the offender, and, in the case of prison, using the custodial period to signal in part the degree of societal condemnation, the offender's post-supervision experience is less important. Because the polity did not intend, authorize, or proximately cause these contingent and speculative (even if foreseeable) post-punishment experiences or effects, they cannot plausibly carry any communicative message on behalf of the polity.").
112. Hudson v. Palmer, 468 U. S. 517, 553 n. 28(1984) (Stevens, J., dissenting).
113. See Jeremy A. Blumenthal, Law and Emotions: The Problems of Affective Forecasting, 80 IND. L. J. 155, 167-69(2005) (summarizing various studies regarding hedonic adaptation).
114. Exemplified, for instance, by passage of the federal Second Chance Act, there has been considerable bipartisan interest in recent years in providing enhanced social services for returning prisoners. Beth A. Colgan, The Presidential Politics of Prisoner Reentry Reform, 20 FED. SENT'G REP. 110, 111-12(2007).
115. See Mary Zahn & Gina Barton, Tougher Sentencing Law Carries Hefty Price; Estimated $1.8 Billion through 2025, MILWAUKEE J. SENTINEL, Nov. 21, 2004, at 1A, 20A (noting that Wisconsin inmates admitted under new truth-in-sentencing law were responsible for higher rate of major conduct violations than inmates who were eligible for parole).
116. See Mary Zahn, Inmates Less Motivated, Wardens Find, MILWAUKEE J. SENTINEL, Nov. 22, 2004, at 14A (noting view of prison wardens that adoption of truth-in-sentencing law in Wisconsin reduced the motivation of inmates to participate in drug and alcohol treatment programs and other rehabilitative opportunities).
117. Douglas N. Husak, Desert, Proportionality, and the Seriousness of Drug Offences, in FUNDAMENTALS OF SENTENCING THEORY: ESSAYS IN HONOR OF ANDREW VON HIRSCH 187, 218 (Andrew Ashworth & Martin Wasik eds., 1998) (discussing difficulty of justifying criminal punishment for drug possession offenses under principle of proportionality).
118. See THOMAS P. BONCZAR, U. S. DEP'T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U. S. POPULATION, 1974-2001, at 1(2003) (showing doubling of percentage of U. S. adults who had served time in state or federal prison between 1974 and 2001).
119. See, e.g., Jean Hampton, The Moral Education Theory of Punishment, 13 PHIL. & PUB. AFF. 208, 209-21(1984) (presenting moral-education theory as justification for punishment);
120. See, e.g., R. A. DUFF, ANSWERING FOR CRIME: RESPONSIBILITY AND LIABILITY IN THE CRIMINAL LAW (2007).
121. Robert Blecker, Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified, 42 STAN. L. REV. 1149, 1244-48(1990). However, his understanding of retribution seems to focus on proportionality alone and without a broader communicative agenda.
122. TINA CHIU, VERA INSTITUTE FOR JUSTICE, IT'S ABOUT TIME: AGING PRISONERS, INCREASING COSTS, AND GERIATRIC RELEASE 10(2010).
123. RYAN S. KING, THE SENTENCING PROJECT, THE STATE OF SENTENCING 2007: DEVELOPMENTS IN POLICY AND PRACTICE, at 13(2008) [hereinafter KING, 2007].
124. RYAN S. KING, THE SENTENCING PROJECT, CHANGING DIRECTION? STATE SENTENCING REFORMS, 2004-2006, at 13(2009) [hereinafter KING, CHANGING DIRECTION].
125. National Conference of State Legislatures, Significant State Sentencing and Corrections Legislation in 2009(2010), available at http://www.ncsl.org/ default.aspx?tabid=19122 [hereinafter National Conference of State Legislatures, 2009].
126. NICOLE D. PORTER, THE SENTENCING PROJECT, THE STATE OF SENTENCING 2010: DEVELOPMENTS IN POLICY AND PRACTICE, at 3(2011).
127. ALISON LAWRENCE, NATIONAL CONFERENCE OF STATE LEGISLATURES, CUTTING CORRECTIONS COSTS: EARNED TIME POLICIES FOR STATE PRISONERS 4(2009).
128. National Conference of State Legislatures, State Sentencing and Corrections Legislation in 2010, available at http://www.ncsl.org/?TabId=20763 [hereinafter National Conference of State Legislatures, 2010].
129. KING, CHANGING DIRECTION, supra note 219, at 12.
130. National Conference of State Legislatures, Significant State Sentencing and Corrections Legislation in 2007 and 2008(2010), available at http://www.ncsl.org/default.aspx?tabid=12682 [hereinafter National Conference of State Legislatures, 2007-2008].
131. National Conference of State Legislatures, 2010, supra note 223.
132. National Conference of State Legislatures, 2009, supra note 220.
133. National Conference of State Legislatures, 2007-2008, supra note 225.
134. RYAN S. KING, THE SENTENCING PROJECT, THE STATE OF SENTENCING 2008: DEVELOPMENTS IN POLICY AND PRACTICE, at 4(2009) [hereinafter KING, 2008].
135. NICOLE D. PORTER, THE SENTENCING PROJECT, THE STATE OF SENTENCING 2009: DEVELOPMENTS IN POLICY AND PRACTICE, at 3(2010) [hereinafter PORTER, 2009].
136. VERA INSTITUTE OF JUSTICE, THE CONTINUING FISCAL CRISIS IN CORRECTIONS: SETTING A NEW COURSE 18(2010).
137. RYAN S. KING & MARC MAUER, THE SENTENCING PROJECT, STATE SENTENCING AND CORRECTIONS POUCY IN AN ERA OF FISCAL RESTRAINT 5(2002).
138. National Conference of State Legislatures, 2007-2008, supra note 225.
139. VERA INSTITUTE OF JUSTICE, supra note 234, at 18, 19.
140. National Conference of State Legislatures, 2007-2008, supra note 225.
141. National Conference of State Legislatures, 2009, supra note 220.
142. KING, CHANGING DIRECTION, supra note 219, at 6.
143. National Conference of State Legislatures, 2009, supra note 220.
144. KING, CHANGING DIRECTION, supra note 219, at 14.
145. KING, CHANGING DIRECTION, supra note 219, at 14.
146. National Conference of State Legislatures, 2010, supra note 223.
147. National Conference of State Legislatures, 2009, supra note 220.
148. KING, CHANGING DIRECTION, supra note 219, at 15-16.
149. National Conference of State Legislatures, 2010, supra note 223.
150. National Conference of State Legislatures, 2007-2008, supra note 225.
151. VERA INSTITUTE OF JUSTICE, supra note 234, at 17-18.
152. National Conference of State Legislatures, 2010, supra note 223.
153. VERA INSTITUTE OF JUSTICE, supra note 234, at 18-19.
154. National Conference of State Legislatures, 2007-2008, supra note 225.
155. VERA INSTITUTE OF JUSTICE, supra note 234, at 19.
156. National Conference of State Legislatures, 2007-2008, supra note 225.
157. National Conference of State Legislatures, 2010, supra note 223.
158. VERA INSTITUTE OF JUSTICE, supra note 234, at 19.
159. National Conference of State Legislatures, 2009, supra note 220.
160. National Conference of State Legislatures, 2007-2008, supra note 225.