They're Crazier Than You Think

Legal Academia, the Gift that Keeps on Giving

It’s not exactly a surprise at this point that legal academia, and particularly most of The Biggies (e.g., Yale, Stanford, Harvard, Columbia, NYU), are cheerleaders for left wing initiatives. But every now and again, you need to be able to bring yourself to read some of the pieces their faculty members publish to understand just how far things have gone. Hence I bring you this abstract of a law review article in 70 Emory Law Journal 1209 (2021) by one Christopher Lewis. Mr. Lewis has a distinguished academic background. He is an Assistant Professor at Harvard Law School, not some fly-by-night hanger-on at a law school you never heard of. This is his view of how the courts should view sentencing for repeat offenders:

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.

This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.

You read that right. Prof. Lewis is proposing that those who prove by repeated episodes of crime that they simply are not going to live by the rules that bind the rest of us should be treated more leniently with each successive rape or robbery or carjacking or what have you.

There are several long-accepted purposes of sentencing: Just desert, rehabilitation, deterrence, and incapacitation (by being incarcerated away from civil society).

There’s a good deal of controversy about the first three. Just desert is largely a subjective term, and opinions are all over the place. Rehabilitation is surely desirable, but sky-high recidivism statistics tell us that we know very little about how to achieve it. The same statistics tell us that deterrence is an iffy proposition; most criminals get back in business at some point after they’re released.

The one goal of punishment about which there can’t be much dispute is incapacitation. When you’re incarcerated, you won’t be out on the street selling smack to a high school kid, or breaking into someone’s house while he’s on vacation, or knocking over the 7-11 by sticking an icepick in the clerk’s ear. Incapacitation is the one thing we know works to make for a more peaceful and secure life for normal people (although it doesn’t work perfectly, inmate-on-inmate crime being an unavoidable reality). Longer sentences for more criminals was one of the key reasons that crime rates fell by close to half for about 20 years after crime’s high point in 1991.

If we have lower sentences as the criminal proves with increasing certainty that he’s simply going to keep on keepin’ on, then obviously we’re going to lose more and more of the benefits of incapacitation. That in turn will mean more crime and more crime victims. The desirability of this increased suffering might, to Prof. Lewis, “follow logically from fairly ordinary moral premises,” but I’ll confess that my moral premises are, ummmmm, different.

P.S. Still, you have to hand it to legal academics for their willingness to say what they think. At least some people on campus don’t get canceled.