“Columbia Law Review In Memoriam: Justice Ruth Bader Ginsburg.”You can access via this link a series of remarkable tributes that the Columbia Law Review has collected.

From the Sentencing Law & Policy Blog

The Marshall Project unveils “The Language Project” to explore words used to describe people in the justice system

As a lawyer who thinks precise language and legal terminology is always important, and as a blogger who often hopes to avoid clumsy locutions and sometimes parrots and reprints journalistic word conventions, I am always interested in debates over the array of words we use in describing the criminal justice system and the people connected to it.  These debates are heating up as interest in criminal justice reform heats up.  Indeed, as some readers surely know, even the term “criminal justice system” is a matter of debate; many now speak of the “criminal legal system” in an effort to undercut any suggestion that the current system helps to achieve “justice.”

Against this backdrop, I am quite intrigued to see that The Marshall Project has unveiled today “The Language Project,” which it sets up this way:

Reporters and editors have long believed that terms such as “inmate,” “felon” and “offender” are clear, succinct and neutral.  But a vocal segment of people affected by the criminal justice system argue that these words — and any other words that define human beings by their crimes and punishments — are dehumanizing.

The Marshall Project occupies a unique space in criminal justice reporting.  We are not an advocacy organization, but we are committed to sustaining a sense of national urgency about the U.S. criminal justice system.  As a result, fellow journalists often ask us about our style and standards around the language of criminal justice, and activists we meet frequently confront us about our usage of words such as “inmate.”

The Marshall Project began addressing this issue in 2015, our second year of existence, but we did not make a decision to change our style guide.  Since then, through our deepening engagement with formerly and currently incarcerated people, we have realized the urgency of examining and articulating the language we use.

The Language Project serves three purposes.  First, through a series of powerful pieces by and about people with intimate experience with incarceration, we show the human impact of the words we choose.  Second, our guide, “What Words We Use — and Avoid — When Covering People and Incarceration,” makes public our decision to avoid labels such as “inmate,” in favor of language that follows the logic of “person-first” language.  Third, we provide alternatives to the labels.

At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Here are links to the first set of pieces in this notable new “Project”:

• “Good Intentions Don’t Blunt the Impact of Dehumanizing Words” by Lisette Bamenga
• “I Was Trained to Call Prisoners a Word They Hated” by Kevin Byrd, as told to Adria Watson
• “I Am Not Your ‘Inmate’” by Lawrence Bartley
• “What Words We Use — and Avoid — When Covering People and Incarceration” by Akiba Solomon

Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

I am writing to share some of the writing I have been doing of late, which has largely focused on the challenges confronting nonprofit leaders and criminal justice reformers.  This includes the latest in the series of interviews I am doing for the Harry Frank Guggenheim Foundation on the surge in violence in New York City.

“People Who Do Hurtful Things Are Reacting to Hurtful Things”: A Conversation with Marlon Peterson

Man Plans, God Laughs: How Not to Reform the Criminal Justice System 

Hard Choices: How Can the “Nonprofit Industrial Complex” Do Better?

A View from the Future: Questioning the Conventional Wisdom in Criminal Justice

Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

Does media coverage of crime lead to harsher sentences? One would like to think that judges are not influenced by media coverage but ruling it totally out is perhaps a bit naive. There is an interesting  paper  exploring this issue posted on SSRN authored by Itay Ravid. Here is its abstract:

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

Disorderly conduct may well be one of the most frequent misdemeanor charges. So why would anyone suggest that disorderly conduct as a charge be abolished? Whether you ultimately agree there is a need for reform or not  this new article by Rachel Moran recently posted to SSRN is thought provoking.   Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve

Maneka Sinha (University of Maryland Francis King Carey School of Law) has posted Junk Science at Sentencing(George Washington Law Review, Vol. 89, No. 1, 2021) on SSRN. Here is the abstract: 

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility standard guards against junk science deciding punishment. Over ninety-five percent of defendants, therefore, do not get the basic protection against faulty STS evidence that trial defendants get. This may result in harsher sentences based on junk science that has been admitted and considered without any screening or vetting.

This Article offers the first in-depth exploration of STS evidence at sentencing. It links two bodies of literature: the first analyzing the negative effects of junk science on the reliability of trials and the second arguing for extending procedural protections to sentencing. This Article builds upon these literatures by proposing an implementable mechanism for evaluating STS evidence at sentencing while retaining special protections for criminal defendants. The Article recommends that Federal Rule of Evidence 702 (or its state analog) apply at sentencing to determine the admissibility of STS evidence offered in support of harsher punishment, but not to such evidence offered by defendants as mitigation.