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Published online by Cambridge University Press: 25 February 2021
My goal in this paper is to tell you a story, a story about race, about crime, about discretion, and about hope. I want to suggest that mass incarceration in the United States is not necessary or wise. It is the product of a criminal justice system that has ballooned beyond reason or recognition from its design.
This Coxford Lecture was given at the University of Western Ontario on 13 November 2019.
1. Emily Bazelon, “Arguing Three Strikes”, New York Times Magazine (21 May 2010) online at https://www.nytimes.com/2010/05/23/magazine/23strikes-t.html.
2. Emily Bazelon, Charged (Penguin Random House, 2019).
3. William J Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011) at 34.
4. Sonja B Starr & M Marit Rehavi, “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker” (2013) 123:1 Yale LJ 2 at 5.
5. John Pfaff, Locked In (Basic Books, 2017) at 72. Pfaff used data from the Court Statistics Project of the National Center on State Courts between 1994 and 2008.
6. Deborah Rhode, Character (Oxford University Press, 2019).
7. Jamiles Lartey & Weihua Li, “New FBI Data: Violent Crime Still Falling” The Marshall Project (30 September 2019), online at https://www.themarshallproject.org/2019/09/30/new-fbi-data-violent-crime-still-falling.
8. Nazgol Ghandnoosh, “Can We Wait 75 Years to Cut the Prison Population in Half?” The Sentencing Project (8 March 2018), online at https://www.sentencingproject.org/publications/can-wait-75-years-cut-prison-population-half/.
9. Peter Wagner & Wendy Sawyer, “States of Incarceration: The Global Context 2018” Prison Policy Initiative (June 2018), online at https://www.prisonpolicy.org/global/2018.html.
10. Adam Liptak, “Illegal Globally, Bail for Profit Remains in U.S.”, New York Times (29 January 2008), online at https://www.nytimes.com/2008/01/29/us/29bail.html. The second part of the quote paraphrases FE Devine, who wrote a book surveying the international bail scene; FE Devine, Commercial Bail Bonding (Praeger, 1991).
11. US, Kentucky Justice and Public Safety Cabinet Criminal Justice Council, 2015 HB463 Implementation Report (Kentucky: Justice and Public Safety Cabinet, 2015) at 3.
12. Matthew DeMichele et al, “The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky” (25 April 2018) at 21, online at https://ssrn.com/abstract=3168452.
13. Kevin Pantazi quoting Paul Heaton, one of the authors of the Penn Law study, in “Lawsuit Says Jacksonville Can’t Jail Defendants for Being Too Poor to Pay Bail”, Florida Times-Union (31 August 2017).
14. Paul Heaton, Sandra G Mayson & Megan Stevenson, “The Downstream Consequences of Misdemeanor Pretrial Detention” (2017) 69:3 Stan L Rev 711 at 718.
15. Gary Fields & John R Emshwiller, “Federal Guilty Pleas Soar as Bargains Trump Trials”, Wall Street Journal (23 September 2012); US, Mark Motivans, Federal Justice Statistics, 2014—Statistical Tables (US Department of Justice: Bureau of Justice Statistics, 2017) at 17, online at https://www.bjs.gov/content/pub/pdf/fjs13st.pdf; US, Brian A Reaves, Felony Defendants in Large Urban Counties, 2009—Statistical Tables (US Department of Justice: Bureau of Justice Statistics, 2013) at 24, online at https://www.bjs.gov/content/pub/pdf/fdluc09.pdf.
16. Bordenkircher v Hayes, 434 US 357 (1978).
17. The numbers come from the National Registry of Exonerations, which also tries to unravel the cause of each wrongful conviction. The group has found that about half involved misconduct by police, prosecutors, or both. The figure was 60 percent for the 143 exonerations counted in 2017, and the most common form of misconduct was the concealment of exculpatory evidence. National Registry of Exonerations, Exonerations in 2017 (14 March 2018) at 6, online at http://www.law.umich.edu/special/exoneration/Documents/ExonerationsIn2017.pdf. The registry is a joint project of Michigan Law School and Northwestern Law School.
18. Imbler v Pachtman, 424 US 409 (1976).
19. Alex Kozinski, “Criminal Law 2.0” (2015) 44 Geo LJ Ann Rev of Crim Proc iii at xxxix. As I noted in my book, I recognize the problematic nature of quoting Kozinski, who has been credibly accused of sexual harassment by more than a dozen women. See Leah Litman, Emily Murphy & Katherine H Ku, “Comeback But No Reckoning” New York Times (2 August 2018), online at https://www.nytimes.com/2018/08/02/opinion/sunday/alex-kozinski-harassment-allegations-comeback.html. I have relied on his article because of its place in the record as a devastating and important critique. See Editorial Board, “Dishonest Prosecutors, Lots of Them”, New York Times (30 September 2015), online at https://www.nytimes.com/2015/09/30/opinion/dishonest-prosecutors-lots-of-them-in-southern-calif.html.
20. Brady v Maryland, 373 US 83 (1963) [Brady].
21. R v Stinchcombe,  3 SCR 326.
22. Sam Krumholz, “The Effect of District Attorneys on Local Criminal Justice Outcomes” University of California, San Diego (UCSD) Department of Economics (January 2019) 1, online at https://ssrn.com/abstract=3243162.
23. American Civil Liberties Union, Press Release, “91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds” (16 November 2017), online at https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds.
24. Robert Sampson, Stephen Raudenbush & Felton Earls, “Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy” (1997) 277:5328 Science 918.
25. Patrick Sharkey, Gerard Torrats-Espinosa & Delaram Takyar, “Community and the Crime Decline: The Causal Effect of Local Nonprofits on Violent Crime” (2017) 82:6 American Sociological Review 1214 at 1215.
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