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Legal Commentary

: Prawfs

Leaniency: The Criminal Process in Times of Scarcity

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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I've been thinking a lot about the many ways in which the financial crisis has shaped changes in the criminal process. Most of my energy was devoted, recently, to thinking about its impact on the correctional apparatus (much of this was covered in the California Correctional Crisis blog). In my article Humonetarianism: The New Correctional Discourse of Scarcity, I argued that the crisis provided a rare opportunity to revisit a forty-year-old punitiveness wave; it gave politicians permission to adopt non-punitive policies with less concerns about appearing "soft on crime". The most striking example of this is the passage of the (admittedly watered-down version of) Governor Schwarzenegger's early release plan, based on comprehensive parole reform and good credits.

This does not mean, of course, that the considerations behind our correctional policy have really become less punitive in any deep or meaningful way. Our discourse has not fundamentally changed; moreover, the solutions we have approved are far from being systematic. California still does not have a sentencing commission. Various serious concerns about prison overcrowding, such as the overrepresentation of minorities, have not been properly addressed. Not much consideration, if any, has been given to the aims of punishment with regard to old and infirm inmates (beyond the issue of cost of their medical expenses). Nevertheless, as studies in punitivism repeatedly show, the public tends to be much less punitive in surveys and experiments when presented with the costs of punishment.

Keeping track of humonetarianism made me more aware of the impact of cost and scarcity on other stages of the criminal process. And, indeed, there is some evidence of crisis-mode budgeting which is changing the nature of the criminal process. This is not real leniency or a turn away from severity, but it often manifests itself in the way of decriminalization, changes in prosecutorial policies, etc, among other phenomena. Which is why I call it "leaniency". One glaring example is the fact that, perhaps for the first time, there is a real chance that California voters might legalize marijuana. As I recently found out from Quintin Mecke, who is Assemblyman Tom Ammiano's Communications Director, they've been seeing increased support of their marijuana legalization/regulation proposal in polls whenever they link it with taxation and increased revenue for the state from marijuana sales.

Other aspects of leaniency have to do with the decreased budgets of the police, prosecution, and defense. All these agencies have to adopt lean, smart policies about work if they are to survive. Beyond the hiring crisis in D.A. and P.D. offices, there is evidence that prosecutorial policies have changed to allow less cases into the criminal process; in some counties, some offenses are not being charged. Public Defenders focus their efforts on cheaper case management, avoiding involvement in mechanisms such as problem solving courts, which tend to suck up resources and time. Has there been an increase in plea bargains? I have no idea, but I would not be surprised if there has.

In what other ways is a cheap criminal process different? Is it merely an updated version of Herbert Packer's crime control model, or is something else going on? Your comments appreciated.

Full post as published by Prawfs on March 03, 2010 (boomark / email).