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Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt.

Despite the importance of injunctions, courts have applied an astonishingly wide range of contradictory approaches to interpreting them. They have likewise disagreed over whether appellate courts should defer to trial courts’ interpretations or instead review those interpretations de novo. Virtually no scholarship has been written on these topics.

This Article proposes that courts apply a modified textualist approach to injunctions. Under this scheme, courts would generally interpret injunctions according to the ordinary meaning of their language. When a provision in an injunction quotes or incorporates by reference an extrinsic legal authority, such as a statute or contract, however, courts would interpret that provision according to the methodology they would ordinarily apply to that extrinsic authority. This proposed approach ensures that injunctions provide regulated parties with adequate notice of the conduct proscribed, curtails judicial abuses of power, and aligns tightly with the procedural rules that govern injunctions in both federal and state courts.

This Article further proposes that appellate courts review trial courts’ interpretations of injunctions de novo. Independent appellate review naturally aligns with the textualist goal of implementing the best reading of an injunction, promotes principles of notice, and prevents government overreach.

Introduction

Injunctions are one of the most powerful remedies in the law.¹1.F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929).Show More They dictate behavior; parties who disobey injunctions face the prospect of contempt.²2.Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see alsoJoseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”).Show More Over the past century, injunctions have grown only more powerful, evolving into new forms such as structural injunctions³3.SeeOwen M. Fiss, The Civil Rights Injunction 4–5 (1978).Show More and nationwide injunctions.⁴4.SeeMichael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see alsoSamuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s).Show More For these reasons, ascertaining the precise meaning of an injunction is critically important. Parties need to know what conduct an injunction requires or prohibits, and courts must be able to determine whether an injunction has been violated.

There is significant inconsistency, however, in how courts interpret injunctions. Courts at every level have employed a wide range of methods, including textualism, purposivism, intentionalism, and pragmatism. These different theories can easily lead to inconsistent interpretations of identical injunctions. The lack of a uniform approach to interpreting injunctions has also contributed to disagreement among appellate courts as to whether to defer to trial courts’ interpretations of such orders. Some appellate courts review trial courts’ interpretations of injunctions de novo, while others apply more deferential standards of review.⁵5.Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered).Show More Deference makes more sense under some interpretive regimes than others.

One reason for this disarray is that theories of interpretation for injunctions are surprisingly underdeveloped. In contrast to the extensive bodies of work that discuss various approaches to interpreting the Constitution,⁶6.See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).Show More statutes,⁷7.See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014).Show More regulations,⁸8.See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).Show More contracts,⁹9.See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005).Show More and wills,¹⁰10.See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936).Show More virtually nothing has been written about the proper method for interpreting injunctions.¹¹11.No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. SeeTimothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010).Show More Injunctions present several considerations that do not arise with regard to other legal instruments. For example, unlike statutes that typically apply to groups of people or entities, or even the general public, injunctions operate as targeted laws, imposing coercive legal obligations on particular named parties and their associates. Moreover, in contrast to virtually every other type of legal document, an injunction is typically interpreted by the same person—the trial judge—who entered the injunction in the first place.¹²12.See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).Show More

At first glance, these considerations do not uniformly point toward a single theory of interpretation. For example, on the one hand, one might support a purposivist approach to interpretation because injunctions are typically both drafted and interpreted by the same court. An injunction’s author is in the best position to know the goals she was trying to accomplish and the most effective ways to promote them. On the other hand, because injunctions are targeted at particular individuals, a textualist approach would limit abusive enforcement by constraining the court’s ability to impose sanctions.

This Article recommends two main principles to guide the interpretation of injunctions. First, it proposes that courts adopt a modified textualist approach to interpreting injunctions. Under this proposal, a court would construe most provisions within an injunction according to the ordinary meaning of their language.¹³13.For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism].Show More A textualist approach ensures adequate notice to individuals subject to the injunction; reduces opportunities for judicial abuse of the contempt power; and is most consistent with both Federal Rule of Civil Procedure 65(d), which requires an injunction to “state its terms specifically,”¹⁴14.Fed. R. Civ. P. 65(d)(1)(B).Show More as well as its state analogues. Although a textualist approach presents the risk that individuals might try to circumvent injunctions by skirting the bounds of the prohibited conduct, courts can address this problem by modifying injunctions when necessary to prohibit such actions. This proposal reduces the risk of arbitrary or vindictive enforcement while still providing courts with flexibility to tailor injunctions over time to address unforeseen problems.¹⁵15.In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language).Show More

We call the proposal “modified” textualism because we recognize an exception under which courts should depart from a pure textualist approach. Injunctions often draw on other legal authorities, such as statutes or contracts, that courts may interpret using approaches other than textualism. This Article proposes that a court should construe provisions within an injunction that quote or incorporate by reference an extrinsic legal authority according to the interpretive theory it would ordinarily apply to that type of authority. In contrast, when a provision restates or paraphrases an extrinsic legal authority in the issuing court’s own language—and especially when the provision imposes prophylactic protections that go beyond the requirements imposed by that extrinsic authority—the court should apply a textualist interpretation. Although this approach loses some of the benefits of notice and constraint provided by textualism, it maintains consistency and coherence in the interpretation of those other legal authorities.¹⁶16.In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. SeeGonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes).Show More

Furthermore, although courts should apply a modified textualist approach in determining what an injunction means, non-textualist considerations should still play an important role in determining the proper remedy for violations. Not all violations of injunctions require contempt. A court has broad discretion to decline to hold a violator in contempt, for example, where that person’s conduct was only a technical violation of the injunction or did not undermine the injunction’s purpose. A court may likewise refuse to impose contempt sanctions when they would be against the public interest. Permitting courts to consider purposivist factors at the remedy phase would preserve a textualist approach to interpreting the terms of the injunction itself while capturing some of the benefits of non-textualist methods of interpretation.

Second, this Article argues that appellate courts should not defer to trial courts’ interpretations of injunctions. Plenary review naturally aligns with the textualist premise that an injunction’s text has a single, best legal meaning. De novo review also tends to ensure notice to the regulated parties by limiting the ability of an injunction’s author to enforce her unexpressed intentions or underlying purposes. And it prevents judicial abuses more effectively than deferential review by creating a greater degree of oversight.

Moreover, the standard justifications for appellate deference do not warrant a more limited standard of review for trial judges’ interpretations of injunctions.¹⁷17.See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority).Show More Legislatures have not passed sweeping laws that either grant trial courts unique judicial authority over the interpretation of injunctions or require appellate courts to defer to them. Furthermore, trial courts do not have special expertise in determining the ordinary meaning of language; an appellate court is just as capable as a trial court of resolving such issues. Indeed, the characteristics that would make a trial judge an expert on an injunction’s meaning—being the judge who presided over the proceedings that led to the injunction and originally entered it—are precisely the same factors that create the greatest risk of abuse and accordingly counsel against deference.

Part I of this Article begins by explaining the fundamentals of injunctions, describing how they are entered and enforced. It then examines the wide range of interpretive methods courts have used to interpret them.

Part II begins building the case for a modified textualist approach to interpreting injunctions. It explains that textualism better promotes the values of providing notice and constraining government action than other methods of interpretation. It goes on to show that textualism also aligns well with the Federal Rules of Civil Procedure and analogous state provisions that require courts to clearly specify the terms of injunctions. This Part then addresses three major objections to a textualist approach. One is the practical argument that textualism makes it easier for parties to circumvent injunctions. Another is the prudential objection that a textualist approach may lead judges to enter unnecessarily broad injunctions to avoid such circumvention. Finally, this Part considers the philosophical argument that textualism is inapt because the “law” created by the injunction is really the intent of the drafter, and the terms of the injunction are merely evidence of that intent.

Part III more fully explores the contours of our proposal. It begins by suggesting that, although courts generally should interpret injunctions based on textualist principles, they should construe provisions in an injunction that quote or incorporate extrinsic legal authorities according to the interpretive methodologies the court would apply to those authorities in other contexts. This Part goes on to show why this modified textualist approach is appropriate not only for permanent injunctions, but for all other types of injunctions—including temporary restraining orders, preliminary injunctions, and consent decrees—as well. Finally, this Part recognizes that, although courts should adopt modified textualism to interpret injunctions, they still may consider non-textual factors in exercising their discretion as to whether to hold violators in contempt. This approach provides clarity about the meaning of an injunction, while mitigating some of the potential harshness of textualism by permitting courts to opt against punishing all violations of the text.

Part IV turns from the question of how to interpret injunctions to the issue of who should have power to ultimately determine their meaning. Building on the arguments developed in earlier Parts, it argues that appellate courts should determine the meaning of injunctions de novo, rather than mechanically adopting or deferentially reviewing trial courts’ interpretations.

* Judge John J. Parker Distinguished Professor of Law and Associate Dean, University of North Carolina School of Law. ↑
** Associate Professor, Florida State University (FSU) College of Law. The authors are grateful for helpful feedback and suggestions from Sam Bray, Richard Fallon, Carissa Hessick, Doug Laycock, Leigh Osofksy, and Caprice Roberts, as well as the participants at the Notre Dame Law School Remedies Roundtable and 2018 Southeastern Association of Law Schools Remedies Discussion Group. ↑
F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929). ↑
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see also Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”). ↑
See Owen M. Fiss, The Civil Rights Injunction 4–5 (1978). ↑
See Michael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s). ↑
Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered). ↑
See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990). ↑
See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014). ↑
See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012). ↑
See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005). ↑
See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936). ↑
No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010). ↑
See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism]. ↑
Fed. R. Civ. P. 65(d)(1)(B). ↑
In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language). ↑
In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. See Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes). ↑
See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority). ↑
Injunction, Black’s Law Dictionary 520 (10th ed. 2014); 43A C.J.S. Injunctions § 1 (2004) (“An injunction is a judicial order requiring a person to do or refrain from doing certain acts.”). ↑
The heart of the ongoing debate over nationwide injunctions—more properly called “defendant-oriented injunctions”—concerns whether a court must tailor an injunction to protect only the rights of the plaintiffs before it, or instead may expand the order to protect the rights of third-party non-litigants as well. See Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 28–29 (2019). ↑
See, e.g., Nw. Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586, 606 (N.D. Cal. 1983) (after a trial, permanently enjoining road construction in portions of a national forest), aff’d in part, vacated in part 764 F.2d 581 (9th Cir. 1985), rev’d sub nom. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). ↑
See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”). ↑
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); accord Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam); see Kevin J. Lynch, The Lock-In Effect of Preliminary Injunctions, 66 Fla. L. Rev. 779, 817 (2014) (“When a preliminary injunction is granted, it merely preserves the status quo long enough for a decision to be reached on the merits . . . .”); Morton Denlow, The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard, 22 Rev. Litig. 495, 507 (2003) (“Generally there are three purposes for granting a preliminary injunction: (1) maintaining the status quo, (2) preserving the court’s ability to render a meaningful decision, and (3) minimizing the risk of error.”). ↑
Fed. R. Civ. P. 65(a)(1). ↑
See, e.g., Fed. R. Civ. P. 65(b)(1) (authorizing TROs “without . . . notice to the adverse party” if the movant establishes that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard”). ↑
Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986) (explaining that a consent decree draws its force from “the agreement of the parties, rather than the force of the law upon which the complaint was originally based”). ↑
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). These standards are only presumptive; Congress may change or eliminate them for a particular federal cause of action through clear statutory language. See Michael T. Morley, Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964, 2014 U. Chi. Legal F. 177, 190–94 [hereinafter Morley, Enforcing Equality]. Many states have similar standards for granting injunctions, see 43A C.J.S. Injunctions, supra note 18, § 42 (listing various states imposing similar requirements), although state courts may interpret and apply them differently than federal courts, see Michael T. Morley, Beyond the Elements: Erie and the Standards for Preliminary and Permanent Injunctions, 52 Akron L. Rev. 457, 465–68 (2018) [hereinafter Morley, Beyond the Elements]. ↑
See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (noting the close relationship between the standards for preliminary and permanent injunctive relief); see also 42 Am. Jur. 2d Injunctions § 8, Westlaw (database updated 2021). To obtain a preliminary injunction, a party must show that he is “likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The only differences between this standard and the requirements for permanent relief are that the plaintiff must show only a likelihood of success on the merits rather than actual success, and the court need not separately consider whether an adequate remedy at law exists. Id. The requirements for obtaining a TRO and a preliminary injunction are the same, except the plaintiff seeking a TRO must also demonstrate that circumstances made it impracticable or impossible to notify opposing counsel. See Fed. R. Civ. P. 65(b)(1); S. Cagle Juhan & Greg Rustico, Jurisdiction and Judicial Self-Defense, 165 U. Pa. L. Rev. Online 123, 126 (2017) (“[W]hen considering motions seeking TROs, courts use the same factors as for PIs . . . .”). ↑
See Winter, 555 U.S. at 32 (“An injunction is a matter of equitable discretion.”); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (“[I]njunctive and declaratory judgment remedies are discretionary . . . .”). Because trial courts have such broad discretion concerning injunctions, appellate courts typically review both the decision to enter such orders, as well as their scope, only for abuse of discretion. United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 323 (1961). Nevertheless, on some occasions, appellate courts have engaged in detailed line-by-line parsing of lengthy injunctions, adjusting them as required to ensure their validity, see, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 410–35 (1945). ↑
In Local No. 93, 478 U.S. at 525–26, the U.S. Supreme Court held that a federal court may enter a consent decree if it has jurisdiction over the case, the decree “come[s] within the general scope of the case made by the pleadings,” it “further[s] the objectives of the law upon which the complaint was based,” and it does not affirmatively require “unlawful” action. ↑
Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461 (1940); accord FTC v. Nat’l Lead Co., 352 U.S. 419, 430 (1957) (“[T]he Court is obliged not only to suppress the unlawful practice but to take such reasonable action as is calculated to preclude the revival of the illegal practices.”); see also Tracy A. Thomas, The Prophylactic Remedy: Normative Principles and Definitional Parameters of Broad Injunctive Relief, 52 Buff. L. Rev. 301, 314 (2004) (“[T]here are two definitive attributes of the prophylactic remedy: it is (1) injunctive relief with a preventive goal, (2) that imposes specific measures reaching affiliated legal conduct that contributes to the primary harm.”). ↑
Such broader relief is especially appropriate when the defendant has engaged in knowing and intentional wrongdoing. United States v. U.S. Gypsum Co., 340 U.S. 76, 89–90 (1950) (holding that people who willfully violate the law “call for repression by sterner measures than where the steps could reasonably have been thought permissible”). ↑
Courts may also use injunctions to “cure the ill effects of the illegal conduct” by prohibiting the defendants from profiting from, or enjoying other benefits of, their past illegal activities. Id. at 88–89. For example, an injunction may cancel a contract executed as the result of a price-fixing conspiracy, even though the parties might have entered into the same contract without violating antitrust laws. See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944). ↑
Swift & Co. v. United States, 196 U.S. 375, 396 (1905); see NLRB v. Express Publ’g Co., 312 U.S. 426, 435–36 (1941) (“[T]he mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute,” when that statute prohibits conduct “unlike and unrelated to that with which he was originally charged.”). That said, some precedent suggests that when the Government wins an injunction against violations of federal statutes, it should get the benefit of the doubt about the proper scope of the order to ensure the law is adequately enforced. Local 167, Int’l Brotherhood of Teamsters v. United States, 291 U.S. 293, 299 (1934) (“In framing [the injunction’s] provisions doubts should be resolved in favor of the Government and against the conspirators.”); accord Hartford-Empire, 323 U.S. at 409 (suggesting that a court may “resolve all doubts in favor of the Government” in framing injunctions). ↑
Fed. R. Civ. P. 65(d)(1)(A). Forty-four states have promulgated provisions comparable to Federal Rule 65. See Ala. R. Civ. P. 65; Alaska R. Civ. P. 65; Ariz. R. Civ. P. 65; Ark. R. Civ. P. 65; Cal. Code Civ. Proc. § 65; Colo. R. Civ. P. 65; Conn. Gen. Stat. Ann. § 53a-206; Del. Ch. Ct. R. 65; Fla. R. Civ. P. 1.610; Ga. Code Ann. § 9-11-65; Haw. R. Civ. P. 65; Idaho R. Civ. P. 65; 735 Ill. Comp. Stat. Ann. 5/11-101; Ind. R. Trial P. 65; Kan. Stat. Ann. § 60-906; Ky. R. Civ. P. 65.02; La. Code Civ. Proc. Ann. art. 3605; Me. R. Civ. P. 65; Md. R. 15-502; Mass. R. Civ. P. 65; Minn. R. Civ. P. 65.04; Miss. R. Civ. P. 65; Mo. Sup. Ct. R. 92.02; Mont. Code Ann. § 27-19-105; Neb. Rev. Stat. Ann. § 25-1064.01; Nev. R. Civ. P. 65; N.H. Sup. Ct. R. 48; N.J. Ct. R. 4:52-4; N.C. R. Civ. P. 65; N.D. R. Civ. P. 65; Ohio R. Civ. P. 65; Okla. Stat. tit. xii, § 12-1386; Or. R. Civ. P. 79; R.I. Super. Ct. R. Civ. P. 65; S.C. R. Civ. P. 65; S.D. Codified Laws § 15-6-65(d); Tenn. R. Civ. P. 65.02; Tex. R. Civ. P. 683; Utah R. Civ. P. 65A; Vt. R. Civ. P. 65; Wash. Super. Ct. Civ. R. 65; W. Va. R. Civ. P. 65; Wyo. R. Civ. P. 65. Of the other six states, five—Iowa, New York, Pennsylvania, Virginia, and Wisconsin—have adopted similar requirements by common law. 205 Corp. v. Brandow, 517 N.W.2d 548, 552 (Iowa 1994); Jacquin v. Pennick, 49 A.2d 769, 772 (Pa. Commw. Ct. 1982); Rollins v. Commonwealth, 177 S.E.2d 639, 642 (Va. 1970); Dalton v. Meister, 267 N.W.2d 326, 330 (Wis. 1978); see also 67A N.Y. Jur. 2d Injunctions § 167 (2021) (gathering cases describing New York’s specificity requirement for injunctions). Only New Mexico appears not to have adopted specificity requirements. ↑
Fed. R. Civ. P. 65(d)(1)(B)–(C). Wright, Miller, and Kane’s treatise contends that the “requirement of ‘reasonable detail’ appears to be repetitious of the specificity requirement.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure – Civil § 2955 (3d ed. 2013). Whether an injunction is sufficiently clear depends on a holistic reading of the order. An otherwise vague provision in an injunction may provide adequate notice when read in conjunction with the order’s other provisions. Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 126 (1948) (noting that potentially vague provisions in an injunction must be “read . . . in light of the other paragraphs of the decree”). ↑
Wright et al., supra note 35, § 2955; see also 13 William Moore, Federal Practice – Civil § 65.60[3] (“A court must frame its injunctions or restraining orders so that those who must obey them will know precisely what the court intends to forbid or require.”). Rule 65 further provides that an injunction binds only the parties to a case, their officers and agents, as well as third parties acting in concert with them, if they have notice of it. Fed. R. Civ. P. 65(d)(2). One of the authors has argued that Rule 65(d)(2) is a substantive rule that exceeds the judiciary’s rulemaking authority under the Rules Enabling Act, but the principles it codifies are consistent with both traditional equitable principles as well as the law of nearly all states. Morley, supra note 19, at 49 n.277. ↑
Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also Wright et al., supra note 35, § 2955 (explaining that this specificity requirement is “designed to protect those who are enjoined by informing them of what they are called upon to do or refrain from doing in order to comply with the injunction or restraining order”). ↑
Schmidt, 414 U.S. at 477. ↑
Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 296 (1941). Interestingly, the Court has also suggested, “[A] judge himself should draw the specific terms of such restraint and not rely on drafts submitted by the parties.” Id. ↑
Regal Knitwear Co. v. NLRB, 324 U.S. 9, 10, 15 (1945) (upholding validity of an injunction which specified that it applied not only to the named respondent but its “successors and assigns” as well, because “[i]f defendants enter upon transactions which raise doubts as to the applicability of the injunction, they may petition the court granting it for a modification or construction of the order”); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (upholding broad injunction in part based on respondents’ ability to “petition[] the District Court for a modification, clarification or construction of the order”); United States v. Crescent Amusement Co., 323 U.S. 173, 188 (1944) (suggesting that the “burden” of an injunction drafted in “general” terms can be “lightened by application to the court”). ↑
See N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) (Friendly, J.) (“The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.”). ↑
Fed. R. Civ. P. 60(b)(5) (allowing a court to grant relief from an order when “applying it prospectively is no longer equitable”); see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992) (“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . [and] the proposed modification is suitably tailored to the changed circumstance.”); cf. United States v. Swift & Co., 286 U.S. 106, 119 (1932) (holding that a district court may modify an antitrust consent decree upon a “clear showing of grievous wrong evoked by new and unforeseen conditions”); see generally 42 Am. Jur. 2d Injunctions § 288, Westlaw (database updated 2021) (summarizing the circumstances under which courts may modify or dissolve injunctions). ↑
Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970) (“An injunctive order is an extraordinary writ, enforceable by the power of contempt.”). ↑
See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986). ↑
Hicks v. Feiock, 485 U.S. 624, 631 (1988). ↑
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (explaining that contempt sanctions may “punish a prior offense”). ↑
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). ↑
Hicks, 485 U.S. at 632. Accordingly, defendants in criminal contempt proceedings are entitled to the same constitutional protections that apply in other criminal prosecutions. Id. (holding, in a contempt case, that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings”). For example, defendants in criminal contempt proceedings have the rights to a jury trial (unless the punishment will be six months or less), Bloom v. Illinois, 391 U.S. 194, 210 (1968); to an attorney, Cooke v. United States, 267 U.S. 517, 537 (1925); and to have the prosecution prove its case beyond a reasonable doubt, Hicks, 485 U.S. at 632; Gompers, 221 U.S. at 444; see also U.S. Dep’t of Justice, Criminal Resource Manual § 754 (2012). ↑
United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947). ↑
Id. at 332 (Black, J., concurring in part and dissenting in part); Gompers, 221 U.S. at 441–42. ↑
See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986) (citing United Mine Workers, 330 U.S. at 303–04). ↑
Id.; Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” (internal quotation marks omitted)). ↑
Bagwell, 512 U.S. at 838 (stating that courts may use the compensatory contempt power to “enter broad compensatory awards . . . through civil proceedings”); Doug Rendleman, Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court’s Establishment Clause Legacy?, 59 Wash. & Lee L. Rev. 1343, 1379, 1390 (2002). ↑
United Mine Workers, 330 U.S. at 304. ↑
Gompers, 221 U.S. at 441–42. Although civil contempt may result in these harsh sanctions, fewer protections apply because it is not a criminal remedy. See Turner v. Rogers, 564 U.S. 431, 442 (2011) (“[W]here civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”); Bagwell, 512 U.S. at 827 (holding that “[n]either a jury trial nor proof beyond a reasonable doubt” is necessary for imposing “civil contempt sanctions”). ↑
United Mine Workers, 330 U.S. at 304. ↑
Turner, 564 U.S. at 442 (“[O]nce a civil contemnor complies with the underlying order, he is purged of the contempt and free.”); see also Gompers, 221 U.S. at 442 (explaining that the respondent “can end the sentence and discharge himself at any moment by doing what he had previously refused to do”). ↑
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53 (2012) (“Every application of a text to particular circumstances entails interpretation.”). ↑
1 Charles Fisk Beach, Jr., Commentaries on the Law of Injunctions § 261, at 272 (1895) (“[W]hether or not there has been a breach of an injunction must often turn upon the scope of its terms.”). ↑
See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting). ↑
(1801) 31 Eng. Rep. 962. ↑
Id. at 962. The injunction prohibited the defendant “from cutting down or felling any trees or timber standing or growing for ornament . . . of the mansion-house and buildings at Ombersley Court” and other nearby locations. Id. ↑
Id. at 964. ↑
Id. at 963–64. Woodward v. Earl Lincoln (1674) 36 Eng. Rep. 1000, provides another example of textualism. There, an injunction quieted possession of property. The enjoined individual later assisted a magistrate who lawfully seized the property for restitution. The court held that this assistance violated the injunction. Id. ↑
402 U.S. 673 (1971). ↑
Id. at 676. ↑
Id. ↑
Id. at 674, 676. ↑
Id. at 677. ↑
Id. at 683. ↑
Id. at 677. ↑
Id. ↑
Id. at 677–78. ↑
Id. at 679. ↑
Id. at 681; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). Justice Douglas’ dissent in Armour employed a purposivist approach, instead. He declared that the “evil at which the decree is aimed is combining meatpackers with companies in other food product areas.” Armour, 402 U.S. at 686 (Douglas, J., dissenting). That harm would occur, Justice Douglas said, regardless of whether Armour itself sold prohibited food products, or a company that dealt in such products acquired Armour instead. Id. at 687. Accordingly, he argued, despite the consent decree’s narrow language, it should be given a broader construction to promote its underlying goals more effectively. ↑
See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 407 (1942); see also Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”). ↑
Manning, supra note 15, at 91 (“Purposivists give precedence to policy context.” (emphasis omitted)). ↑
See, e.g., Int’l Longshoreman’s & Warehouseman’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) (applying a “looser, more liberal meaning” to the statutory term “district court of the United States” in order to include Alaska’s territorial courts). ↑
See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers . . . .”). ↑
See 1 Edward M. Dangel, Contempt § 242 (1939) (“[I]t is the spirit and not the letter of the command to which obedience is required, and it must be obeyed in good faith according to its spirit.”). ↑
Bolt v. Stanway (1795) 145 Eng. Rep. 965, 965; 2 Anst. 556, 556–57. ↑
Id. ↑
Id. at 965; 2 Anst. at 557; accord Chaplin v. Cooper (1812) 35 Eng. Rep. 7, 8; 1 V. & B. 16, 19; see also Axe v. Clarke (1779) 21 Eng. Rep. 383, 383–84; Dickens 549, 549–50 (concluding that requiring the sheriff to tender seized assets to satisfy a judgment violated an injunction prohibiting the plaintiff from recovering on that judgment); Robert Henley Eden, A Treatise on the Law of Injunctions 72–73 (1821) (agreeing that, when a court enjoins a person from suing to obtain someone else’s property, and the sheriff has attached that other person’s property, the enjoined party may not sue the sheriff to obtain the attached property). For another early example of purposivism, see St. John’s College, Oxford v. Carter (1839) 41 Eng. Rep. 191, 192; 4 My. & Cr. 497, 497–98 (holding that a defendant violated an injunction prohibiting him from chopping wood in Bagley Wood by encouraging others to chop the wood). ↑
24 Eng. Rep. 1006; 3 P. Wms. 146. ↑
Id. at 1006; 3 P. Wms. at 146–47. ↑
Id. at 1006; 3 P. Wms. at 148. Although relatively rare today, injunctions prohibiting individuals from launching new legal proceedings were historically common. See Eden, supra note 85, at 68. Courts regularly applied purposivism in interpreting those types of injunctions to ensure that they did not unduly interfere with already pending actions. Id. at 69. ↑
336 U.S. 187 (1949). ↑
Id. at 189. ↑
Id. at 190. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 195. ↑
Id. at 192. ↑
Id. ↑
Id. at 193. ↑
Id. ↑
Id. at 192. Justice Frankfurter—usually an avowed purposivist, see, e.g., Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538–39 (1947)—joined with Justice Jackson to issue a strong textualist dissent. He declared that injunctions must be “explicit and precise.” McComb, 336 U.S. at 195 (Frankfurter, J., dissenting). He believed that the injunction at issue lacked the “clearness of command” required for a court to conclude that the defendants had disobeyed it. Id. at 196. “Behind the vague inclusiveness of an injunction like the one before us,” Frankfurter cautioned, “is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings.” Id. at 197. He further warned that holding respondents in contempt for violating vague or general injunction provisions would encourage courts to draft orders with “indefinite terms.” Id. “To be both strict and indefinite” was “a kind of judicial tyranny.” Id. at 195. ↑
312 U.S. 287 (1941). ↑
Id. at 291–92. ↑
Id. at 308 (Black, J., dissenting). ↑
Id. ↑
Id. ↑
Id. at 298 (majority opinion). ↑
Id. Justice Black, applying a primarily textualist approach, dissented, refusing to read such implicit limitations into the injunction. Rejecting Frankfurter’s interpretation, Black stated, “I find not even slight justification for an interpretation of this injunction so as to confine its prohibitions to conduct near stores dealing in respondent’s milk. Neither the language of the injunction nor that of the complaint which sought the injunction indicates such a limitation.” Id. at 310 (Black, J., dissenting). Black’s proposed methodology departed from textualism, however, because he argued that to interpret the injunction, the Court must consider not only the injunction itself, but also “the complaint, the answer, the evidence, the findings, and the decision and judgment of the Illinois courts.” Id. at 307. ↑
See, e.g., United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Hand, J.) (“[W]hat we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.”), aff’d by an equally divided Court, 345 U.S. 979 (1953) (per curiam). ↑
Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) (“The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.”). ↑
280 U.S. 168 (1929). ↑
28 U.S.C. § 380 (1925) (current version at 28 U.S.C. § 2284 (2018)); Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 Geo. L.J. 699, 727–33 (2020). ↑
Hobbs, 280 U.S. at 170. ↑
Id. at 171. ↑
Id. ↑
Id. at 172. ↑
Id. ↑
See Ronald Dworkin, Law’s Empire 95 (1986) (explaining that pragmatism counsels courts to “make whatever decisions seem to them best for the community’s future, not counting any form of consistency with the past as valuable for its own sake”); Richard A. Posner, Law, Pragmatism, and Democracy 59–60 (2003) (arguing for legal interpretations that produce the best outcomes); Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 992 (2016) (explaining that pragmatism “posits only that judges should construe statutes by focusing on the practical consequences that will result from an interpretation and seeking the best result”). ↑
Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should take into account both social context and more tangible consequences). ↑
Id. (noting that pragmatists argue that “the goal of statutory interpretation should be to produce the best results for society”) (citing Richard A. Posner, The Problematics of Moral & Legal Theory 227 (1999); Richard A. Posner, The Problems of Jurisprudence 73–74 (1990)). ↑
62 F.3d 903, 906 (7th Cir. 1995) (Posner, C.J.). ↑
Id. at 905. ↑
Id. ↑
Id. at 907. ↑
Id. ↑
Id. at 906. ↑
Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
Although a court should generally employ textualism to determine the meaning of injunctions, we also propose that a court consider an injunction’s purpose when determining whether to impose sanctions on a violator. See infra Section III.C. ↑
See infra Section III.A. ↑
Manning, Equity, supra note 13, at 7 (arguing that textualism more faithfully implements legislative will than purposivism). ↑
See Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57, 87 (2014) (explaining how political minorities may use vetogates to block legislation). ↑
Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983) (“Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice.”). ↑
See id. at 546. ↑
U.S. Const. art. I, § 7. All states have a presentment requirement, see Jordan E. Pratt, Disregard of Unconstitutional Laws in the Plural State Executive, 86 Miss. L.J. 881, 910 (2017) (“Like the federal Constitution, all state constitutions require that, to become law, bills must either be passed by the legislature and approved by the governor, or enacted by the legislature over the governor’s veto.”), and forty-nine have bicameralism requirements, see Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, 2020 U. Ill. L. Rev. 233, 252 (discussing the “forty-nine states with bicameral legislatures”). ↑
Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612 (2012) (“Nothing but the text has received the approval of the majority of the legislature and of the President, assuming that he signed it rather than vetoed it and had it passed over his veto. Nothing but the text reflects the full legislature’s purpose.”). ↑
Baker v. Gen. Motors Corp., 522 U.S. 222, 236 (1998) (“Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction.”). ↑
See Seidenberg, supra note 12, at 16 (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 557 (2009) [hereinafter Fair Notice] (“[T]extualism by its very definition seeks to satisfy this dictate of fair notice . . . .”). ↑
See Smith v. Goguen, 415 U.S. 566, 572 & n.8 (1974) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). ↑
Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev. 187, 210 (2014). ↑
See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them.” (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926))). ↑
U.S. Const. art. I, § 9, cl. 3 (prohibiting Congress from enacting ex post facto laws); id. art. I, § 10, cl. 1 (prohibiting states from enacting ex post facto laws); see Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964). ↑
Charles Stewart Drewry, A Treatise on the Law and Practice of Injunctions 398 (1842) (“To be guilty of a breach of injunction, the party must have notice of it . . . .”). ↑
See, e.g., Marquis of Downshire v. Lady Sandys (1801) 31 Eng. Rep. 962, 963; 6 Ves. Jun. 108, 109 (observing the duty of the courts to define an injunction’s terms “with precision and accuracy” so that it “might be clearly understood by the parties”); Skip v. Harwood (1747) 26 Eng. Rep. 1125, 1125; 3 Atk. 564, 565 (discussing the importance of notice in an injunction). ↑
Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885). ↑
Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019) (“‘[B]asic fairness requir[es] that those enjoined receive explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt . . . .” (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam))). ↑
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). ↑
United States v. Davis, 139 S. Ct. 2319, 2333 (2019). ↑
See id. (observing that the rule of lenity “is founded on ‘the tenderness of the law for the rights of individuals’ to fair notice of the law” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)); United States v. Bass, 404 U.S. 336, 348 (1971) (explaining that the rule of lenity arises in part from “the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should” (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967))); see also United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (stating that the rule of lenity “vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed”). ↑
See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517–18 (1992) (plurality opinion) (applying the rule of lenity to a “tax statute . . . in a civil setting” because the statute “has criminal applications”). ↑
See Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (holding that, if a court must construe a statute’s language a particular way in one setting, that interpretation carries over to other settings, and declaring that “[t]he lowest common denominator, as it were, must govern”). ↑
Although the rule of lenity is a doctrine of statutory interpretation, a handful of courts have applied it when interpreting injunctions to decide whether to impose criminal contempt. See, e.g., Gates v. Pfeiffer, No. G039450, 2009 WL 693468, at *9 (Cal. Ct. App. Mar. 17, 2009) (citing Lopez v. Superior Court, 72 Cal. Rptr. 3d 929, 935 (Ct. App. 2008)) (“As a penal law, the restraining order was subject to the so-called ‘rule of lenity,’ which requires that ambiguities in penal laws be construed in favor of defendants.”). ↑
See supra notes 44–45 and accompanying text. ↑
See supra notes 46–49 and accompanying text. ↑
Cf. Leocal, 543 U.S. at 11 n.8 (explaining that “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies”). ↑
Taggart v. Lorenzen, 139 S. Ct. 1795, 1801–02 (2019) (justifying the rule of strict construction in a compensatory contempt case on the ground that coercive contempt can be a severe remedy); see also Shillitani v. United States, 384 U.S. 364, 369 (1966) (stating that civil contempt constitutes “punishment,” but that it has a different “character and purpose” than criminal contempt (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911))). ↑
See Fair Notice, supra note 137, at 557 (“Textualism as fair notice emphasizes the importance of interpreting laws as their subjects would fairly have expected them to apply.”). ↑
See Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
See Hart & Sacks, supra note 78, at 1374 (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”). ↑
See Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 63 (1988) (“[L]aw is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified.”). ↑
See Posner, supra note 109, at 817 (explaining that, under an intentionalist approach, “the task for the judge . . . [is] to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar”). ↑
Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should consider social context and practical consequences). ↑
Id. at 915 (noting that pragmatism “does not claim to promote predictability”). ↑
See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“[T]o speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, ‘one can use a firearm in a number of ways,’ . . . including as an article of exchange, . . . but that is not the ordinary meaning of ‘using’ [it].” (footnote omitted)). ↑
The rule of lenity would point toward the narrower definition of use, of course. ↑
Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (noting that protection from “arbitrary, wrongful government actions” is a core feature of due process). ↑
The Federalist No. 47, at 316 (James Madison) (Harvard Univ. Press ed. 2009) (praising separation of powers on the ground that “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny”); see INS v. Chadha, 462 U.S. 919, 959 (1983) (“[W]e have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”). ↑
See The Federalist No. 47 (James Madison); Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1534 (1991) (“[S]eparation of powers [is] aimed at the interconnected goals of preventing tyranny and protecting liberty.”); see also Ilan Wurman, Constitutional Administration, 69 Stan. L. Rev. 359, 368–69 (2017). ↑
Of course, injunctions predate modern conceptions of separation of powers. But the primary reason the Framers adopted separation of powers as a critical structural principle for the Constitution was to provide increased protection for individual liberty compared to the traditional English system. See Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 16–17 (2006) (“Having endured the tyranny of the King of England, the framers viewed the principle of separation of powers as the central guarantee of a just government.”). ↑
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840, (1994) (Scalia, J., concurring) (“That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers.”). ↑
Charles de Montesquieu, The Spirit of the Laws 174 (Thomas Nugent trans., 1873) (1748) (stating that, if those functions are united, “the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator” (emphasis added)); accord The Federalist No. 47 (James Madison); see also Irving R. Kaufman, The Essence of Judicial Independence, 80 Colum. L. Rev. 671, 701 (1980) (arguing that separating the judiciary from the legislature is central to ensuring “impartial justice”). ↑
Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887, 931 (2020) (“The structural injunction has faced criticism on two major grounds: federalism and separation of powers.”). ↑
Fed. R. Civ. P. 65(d)(1)(B)–(C). ↑
See supra note 34. ↑
Wright et al., supra note 35, § 2955 (explaining that, since Rule 65(d)’s language “strongly suggests that only those acts specified by the order will be treated as within its scope and that no conduct or action will be prohibited by implication, all omissions or ambiguities in the order will be resolved in favor of any person charged with contempt”). ↑
See, e.g., Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 906 (7th Cir. 1995); see also supra notes 120–25 (discussing Schering). ↑
See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (declining to enforce an injunction on the grounds it violated Rule 65(d), because the order was neither “‘specific’ in outlining the ‘terms’ of the injunctive relief granted,” nor “describe[d] ‘in reasonable detail . . . the act or acts sought to be restrained’”); see also Int’l Longshoreman’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76 (1967) (overturning “unintelligible” injunction); Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945); see also Atiyeh v. Capps, 449 U.S. 1312, 1317 (1981) (Rehnquist, C.J., in chambers) (staying order requiring prison officials to reduce prison population by “at least 250” by a particular date because it “falls short of this specificity requirement”). ↑
In Madsen v. Women’s Health Center, 512 U.S. 753, 808–09 (1994), Justice Scalia suggested in his concurrence that the injunction at issue should be read narrowly to satisfy the precision requirement. But in doing so, Justice Scalia did not suggest that a judge’s intent could be used to cure an otherwise defective injunction. Instead, he effectively used the precision requirement as the basis for a substantive canon of interpretation, analogous to the constitutional avoidance principle. Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (declining to interpret a federal law in a way that would raise “difficult and sensitive questions” under the First Amendment). Under Justice Scalia’s approach, courts should reject a broad interpretation of an injunction that would cause that injunction to violate Rule 65(d)’s “axiomatic requirement that its terms be drawn with precision.” Madsen, 512 U.S. at 809. ↑
See, e.g., Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur role is to interpret the intent of Congress in enacting [42 U.S.C.] § 1983 . . . .”). ↑
See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future violations” of the underlying legal provisions.); cf. Cont’l Ill. Nat’l Bank & Trust Co. v. Chi., Rock Island & Pac. Rye Co., 294 U.S. 648, 676 (1935) (noting that an injunction may be issued “for the purpose of protecting and preserving the jurisdiction of the court ‘until the object of the suit is accomplished and complete justice done between the parties’” (quoting Looney v. E. Tex. R.R. Co., 247 U.S. 214, 221 (1918))). ↑
See supra note 77. ↑
See supra notes 108–09 and accompanying text. ↑
See, e.g., Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 632 (7th Cir. 2003) (Posner, J.) (describing an injunction as “appallingly bad” and ordering its modification sua sponte); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 109 (5th Cir. 1994) (recognizing a district court’s authority to modify injunctions sua sponte with prior notice to the parties). See generally Wright et al., supra note 35, § 2961 (noting the “universally recognized principle that a court has continuing power to modify or vacate” an injunction). ↑
See Jost, supra note 11, at 1109 (explaining how courts can use their power to modify injunctions to address unexpected changes in circumstance); see, e.g., Chrysler Corp. v. United States, 316 U.S. 556, 560 (1942) (modifying injunction in light of the parties’ actions). ↑
See United States v. Armour & Co., 402 U.S. 673, 681–82 (1971) (refusing to interpret a consent decree beyond its “four corners,” and declaring that the Government should instead ask the trial court to modify the decree if it is not achieving its intended purposes). Requiring a textualist approach would also incentivize judges to craft injunctions more precisely, to accurately embody their intended proscriptions and promote their goals. ↑
See supra notes 31–33 and accompanying text. ↑
See id. ↑
This argument does not go to the nature of an injunction. Instead, it is an argument about the court’s role in interpreting injunctions. In other words, the argument does not claim that an injunction is the intent of the drafter; rather, it claims that, to perform their role as agent honestly, courts should seek to implement the drafter’s intent. ↑
See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010) (discussing the faithful agent theory of interpretation). ↑
Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1284–85 (2020). ↑
Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both, 99 Cornell L. Rev. 685, 686 (2014) (“A central ambition of most theories of statutory interpretation is to ensure that judges act as faithful agents of the legislature . . . .”); Frank H. Easterbrook, Judges as Honest Agents, 33 Harv. J.L. & Pub. Pol’y 915, 915 (2010) (“The honest-agent [theory] is not controversial.”). ↑
Manning, Equity, supra note 13, at 16 & n.65 (“[A] faithful agent’s job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community.”); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63 (1994); see also Fallon, supra note 191, at 687 (“In textualists’ estimation, courts best act as faithful agents by enforcing the fair meaning of the words that the legislature enacted.”). ↑
See Easterbrook, supra note 191, at 922 (describing difficulties in identifying the desires of drafters); Krishnakumar, supra note 190, at 1334–35 (“[M]any textualists take the view that the enacted text is the best available evidence of Congress’s intent and that close attention to the text is the only way to accurately effectuate that intent.”). ↑
See, e.g., In re W.R. Grace & Co., 475 B.R. 34, 95–96 (D. Del. 2012) (discussing injunction incorporating statutes relating to asbestos claims); In re S.N., No. E055823, 2014 WL 185651, at *4 (Cal. Ct. App. Jan. 16, 2014) (discussing injunction incorporating statutes relating to gang violence). ↑
See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1237 (2015) (explaining how different theories are appropriate for interpreting various types of texts). ↑
See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958) (first proposing this famous example). ↑
Cf. Clark v. Martinez, 543 U.S. 371, 380 (2005) (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”); Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal and civil applications, courts “must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”). ↑
See, e.g., Matter of Rimsat, Ltd., 98 F.3d 956, 965 (7th Cir. 1996) (interpreting an injunction that quoted § 543(b) of the Bankruptcy Code by construing that provision of the Code). ↑
Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (holding that an agency’s interpretation of its own regulation that reflects its “fair and considered judgment on the matter in question” is “controlling unless ‘plainly erroneous or inconsistent with the regulation,’” even if the agency adopted that interpretation without notice-and-comment rulemaking and communicated it in an amicus brief (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (holding that Auer deference “enables the agency to fill out the regulatory scheme Congress has placed under its supervision,” but cautioning that “th[e] Court has cabined Auer’s scope in varied and critical ways”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (providing that, when a regulation’s “meaning . . . is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”). ↑
Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.”). But see Hanah Metchis Volokh, The Anti-Parroting Canon, 6 N.Y.U. J.L. & Liberty 292, 311 (2011) (“[T]he fact that a statute and a regulation use the same words should not always lead to the conclusion that they mean the same thing.”). ↑
Gonzales, 546 U.S. at 257. ↑
Id. ↑
See supra Section II.A. ↑
See supra note 200 and accompanying text. ↑
See supra note 27. ↑
See supra note 42 and accompanying text. ↑
Cf. Morley, Beyond the Elements, supra note 26, at 477 (discussing “[t]he need for consistency between the standards for preliminary and permanent injunctions”). ↑
Fed. R. Civ. P. 65(b)(1). ↑
Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (holding that consent decrees are “hybrid[s]” that can be characterized as both contracts and judgments). But see Thomas M. Mengler, Consent Decree Paradigms: Models Without Meaning, 29 B.C. L. Rev. 291 (1988) (arguing that a consent decree cannot be treated either as a traditional contract or court order). ↑
Local No. 93, 478 U.S. at 519 (“[B]ecause their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”). ↑
See, e.g., EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir. 1991). ↑
420 U.S. 223 (1975). ↑
Id. at 238. ↑
Id. ↑
See Local No. 93, 478 U.S. at 518 (agreeing that a “consent decree looks like and is entered as a judgment”). ↑
ITT Continental Baking, 420 U.S. at 247 (Stewart, J., dissenting) (accusing the majority of “proclaim[ing] a new rule of construction for consent orders or decrees” that was “totally at odds with our previous decisions” and “directly contrary” to precedents allowing a court to consider only the “four corners” of a consent decree); see also United States v. Armour & Co., 402 U.S. 673, 682 (1971) (“[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.”); United States v. Atl. Refin. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). ↑
See Fed. R. Civ. P. 65(d)(2). ↑
Alternatively, federal courts could create a body of federal common law principles for interpreting consent decrees. Creating such a unique interpretive regime distinct from the law governing other types of injunctions seems unnecessarily duplicative, complicated, and burdensome. And any such body of federal common law is likely to be plagued with the same inconsistencies and indeterminacy as the law governing constitutional and statutory interpretation. ↑
Differences in contract law among the states could substantially impact a consent decree’s proper interpretation. For example, states differ on whether contracts must be construed in light of an implied duty of good faith and fair dealing; states that have recognized such a duty have adopted different approaches on how to construe and apply it. See Richard A. Bales, The Discord Between Collective Bargaining and Individual Employment Rights: Theoretical Origins and a Proposed Reconciliation, 77 B.U. L. Rev. 687, 751 (1997) (“[S]ome but not all states imply a duty of good faith and fair dealing into every contract . . . .”); Thomas A. Diamond & Howard Foss, Proposed Standards for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated: A Framework for Resolving the Mystery, 47 Hastings L.J. 585, 590 (1990) (“[A]uthorities differ about the methodology for determining whether conduct violates the covenant [of good faith].”). ↑
Armour & Co., 402 U.S. at 681. ↑
Id. at 681–82 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.”). ↑
See Manning, supra note 15, at 70–71, 74 (advocating for textualism because legislation embodies a compromise); see also Easterbrook, supra note 159, at 63 (noting that a non-textualist interpretative approach ignores that “laws are born of compromise”). ↑
See Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637, 663–64 (2014). ↑
Id. at 682–88. ↑
See, e.g., Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper, 545 F.3d 21, 25 (1st Cir. 2008) (explaining that “even if all of [the] conditions [for contempt] are satisfied, the trial court retains a certain negative discretion . . . to eschew the imposition of a contempt sanction . . . in the interests of justice”); Trials, 45 Geo. L.J. Ann. Rev. Crim. Proc. 569, 683 (2016) (“Courts have broad discretion in finding civil contempt and in imposing sanctions . . . .”). ↑
See United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) (“In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.”); e.g., United States v. Henderson, No. CR 10-117 BDB, 2012 WL 787575, at *3 (N.D. Okla. Mar. 9, 2012) (“In exercising that discretion, the Court will consider factors such as the egregiousness of the violation, the extent to which the disclosure maligned Petitioner’s reputation, and any countervailing considerations that might have supported the disclosure or that militate against imposition of the severe sanction of contempt.”). ↑
See, e.g., Angiodynamics, Inc. v. Biolitec AG, 946 F. Supp. 2d 205, 213 (D. Mass. 2013) (“The text of a court order determines its power over parties. To allow parties to independently deduce the purpose of a court order and determine what acts would be most in line with the purpose—regardless of the text—would make this court irrelevant.”). ↑
See, e.g., Navajo Nation v. Peabody Coal Co., 7 F. App’x 951, 956 (Fed. Cir. 2001) (affirming trial court’s refusal to hold a party in contempt for violating an injunction, because the party’s actions “did not thwart a purpose behind any of the [trial court’s] orders” (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 694–95 (9th Cir. 1993))). ↑
The original form of the rule of lenity specified that courts could not extend a criminal statute beyond its text, but could narrow the statute in favor of defendants by considering its purpose. See, e.g., State v. Norfolk S. R.R. Co., 82 S.E. 963, 966 (N.C. 1914) (“It is an ancient, but just and equitable, doctrine which extends a penal statute beyond its words in favor of a defendant, while holding it tightly to its words against him.”); 1 William A. Hawkins, Treatise of the Pleas of the Crown, ch. 30, § 8, at 77 (1st ed. 1712) (“Penal Statutes are construed strictly against the Subject, and favuorably and equitably for him.”). The rule thus called for different methods of interpretation: textualism to prevent the extension of criminal statutes and purposivism to narrow them.
Such blending of methodologies is uncommon, if not disfavored, today, because each method of interpretation rests on a different set of assumptions and principles. Our proposal avoids this difficulty by permitting courts to consider purpose and other non-textual methods only at the remedial stage, after the court has determined that the text of the injunction has been violated. ↑
Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”). ↑
See, e.g., In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that an appellate court should give “great deference” to a judge’s interpretation of an injunction that he entered); Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“When the district judge who is being asked to interpret an injunction is the same judge who entered it . . . , we should give particularly heavy weight to the district court’s interpretation.”); Hensley v. Bd. of Educ. of Unified Sch. Dist. No. 443, Ford Cnty., 504 P.2d 184, 188 (Kan. 1972) (“When the same trial judge who entered an injunction order hears a later contempt proceeding based on violation of that injunction the interpretation . . . will generally be followed by the appellate court.”); see also Salazar v. Buono, 559 U.S. 700, 762 (2010) (Breyer, J., dissenting) (stating that “the construction given to an injunction by the issuing judge . . . is entitled to great weight” (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 795 (1994) (Scalia, J., concurring in judgment in part and dissenting in part))). It should be noted that Justice Scalia’s endorsement of deferential review is at least somewhat in tension with his concern that allowing the judge who entered an injunction to determine whether that injunction was violated is a recipe for abuse. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J. concurring). ↑
See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982) (stating that plenary review is necessary to achieve consistency in the law). ↑
See id.; Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th Cir. 1996) (observing that the interpretation of an injunction “clarifies . . . the injunction”). ↑
Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49, 55 (2010) (“[D]eferential standards . . . mean that reversal often does not follow from an appellate court’s conclusion that it would have implemented the applicable law differently were it the decision maker in the first instance.”). ↑
Cf. Jeffrey M. Surprenant, Comment, Pulling the Reins on Chevron, 65 Loy. L. Rev. 399, 420 (2019) (“[E]mploying a de novo review would encourage both legislative drafters and their agency helpers to write clear statutes that will withstand judicial scrutiny.”); Laurence H. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 824 (1990) (stating that Chevron should lead Congress to be more careful in drafting laws when it wants to avoid delegation). ↑
Anita S. Krishnakumar, Textualism and Statutory Precedents, 104 Va. L. Rev. 157, 204 (2018) (“Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question . . . .”); see also Christine Kexel Chabot, Selling Chevron, 67 Admin. L. Rev. 481, 509 (2015) (“[T]extualists assume Congress has provided a single, objectively determinable meaning in statutory text.”). ↑
William Ortman, Rulemaking’s Missing Tier, 68 Ala. L. Rev. 225, 246 (2016) (identifying various “structural epistemic advantages” that “reduce the likelihood of legal error” by the appellate courts). ↑
See Marin K. Levy, Visiting Judges, 107 Calif. L. Rev. 67, 139 (2019) (noting the pressures faced by district judges and not appellate judges). ↑
See Ortman, supra note 237, at 247–48 ↑
In arguing that appellate courts should review interpretations de novo, we do not mean to say that appellate courts should review de novo the decision to impose contempt for violations. An injunction’s proper interpretation is a question of law. It is distinct from the subsequent question of whether to hold a person who has violated the injunction in contempt. Decisions about whether to impose contempt sanctions on violators depend on a myriad of factors. See supra note 226 and accompanying text. An appellate court should overturn that decision only if it constitutes an abuse of discretion. Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir. 2003) (reviewing a “finding of contempt under an abuse of discretion standard”). ↑
Horwitz, supra note 17, at 1078. ↑
See id. at 1078–85. ↑
See id. at 1085–90. ↑
See id. at 1072–78. ↑
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). ↑
See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency . . . .”); see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 (1989) (providing a similar justification for Chevron deference). ↑
Smiley, 517 U.S. at 740–71. ↑
Auer v. Robbins, 519 U.S. 452 (1997). ↑
See Kisor v. Wilkie, 139 S. Ct. 2400, 2412 (2019) (plurality opinion) (“We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities.”). A closely related justification for deference to agencies that the Kisor Court identified is that interpreting federal laws necessarily involves policy decisions which Congress has empowered agencies to make. Id. at 2413. There is no comparable assignment of policy-making authority to federal trial courts. More importantly, contempt proceedings are held after an alleged violation of an injunction has occurred. Allowing trial courts to implement policy considerations when interpreting an injunction at that late point would acutely raise the notice and abuse problems outlined earlier. ↑
Cf. Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (explaining that federal courts’ equity powers are limited by the historical practices of the English Court of Chancery). ↑
Bray, supra note 4, at 446 (“There was no appeal from the Chancellor . . . .”). ↑
Horwitz, supra note 17, at 1085 (“The second basic justification for judicial deference is not grounded on the legal authority of the institution to which the courts defer, but rather on its epistemic authority.”). ↑
See United States ex rel. Graham v. Mancusi, 457 F.2d 463, 469–70 (2d Cir. 1972) (Friendly, J.) (“It would still be for the judge who saw and heard the witnesses at the trial or, better, another judge who would see and hear them without having been exposed to the illegal evidence, to determine where the truth lay—not for appellate judges reading a cold record.”); see also Brown v. Plata, 563 U.S. 493, 555 (2011) (Scalia, J., dissenting) (“[H]aving viewed the trial first hand [the trial judge] is in a better position to evaluate the evidence than a judge reviewing a cold record.”). ↑
See, e.g., Emps. Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995). ↑
Id. ↑
139 S. Ct. 2400, 2412 (2019). ↑
Id. ↑
John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1355 (1998) (arguing that textualists can consider other people’s interpretations of a statute, because “the way reasonable persons actually understood a text” can be useful evidence of the text’s meaning, particularly “if those persons had special familiarity with the temper and events of the times that produced that text”); see also Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1451 (1997) (discussing the evidentiary value of other people’s interpretations of a text). ↑
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). ↑
Id.; cf. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1238 (2007) (“Skidmore’s sliding scale encompasses three zones or ‘moods’ reflecting strong, intermediate, and weak or no deference.”). ↑

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity.

In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the Commonwealth embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools.

Looking back fifty years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach.

This Note ultimately argues that the 1971 constitutional revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.

Introduction

In the first years of Virginia’s existence, Thomas Jefferson proposed a radical idea: Widespread public education, for the purpose of preserving democracy.¹1.2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974).Show More His vision is today enshrined in the Commonwealth’s Bill of Rights, which declares “[t]hat free government rests, as does all progress, upon the broadest possible diffusion of knowledge,” and that the Commonwealth thus should give its people the opportunity to develop their talents through “an effective system of education throughout the Commonwealth.”²2.Va. Const. art. I, § 15.Show More He proposed a public education system for all, funded by taxes—a revolutionary idea at the time.³3.Howard, supra note 1, at 879–80.Show More

Virginia’s leaders did not adopt Jefferson’s plan for public education.⁴4.Id. at 880.Show More In fact, it was not until after the Civil War, at the behest of a compromise with Congress for readmission to the Union⁵5.Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 783 (2018).Show More (and, as at least one scholar has suggested, primarily a result of advocacy by ex-slaves⁶6.James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988).Show More), that Virginia reluctantly began to build a universal public education system.

By the middle of the twentieth century, public education had been quietly adopted as a staple of Virginian life, but it was neither a priority nor a value statement—unequal, segregated, and never particularly well-funded.⁷7.See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010).Show More Virginia’s most famous public education moment—its participation in “Massive Resistance” in the years following Brown v. Board of Education—instead showed the Commonwealth’s willingness to sacrifice its children’s education to hold onto the racist ideals of its past.⁸8.See infra Part I.Show More Perhaps no state was party to more high-profile segregation litigation in those years than Virginia, and unfortunately on the wrong side of history.⁹9.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam).Show More

But in 1971, Virginia’s leaders finally sought to change this relationship to public education by enacting major constitutional changes to the Commonwealth’s education article.¹⁰10.See infra Part II.Show More This note analyzes the work the 1971 revision has done in Virginia’s public grade schools during the years since from both a legal and policy perspective. The note ultimately concludes that the results achieved—the primacy and complexity of the Standards of Quality in Virginia’s public schools; the new balance of power between the Board of Education, the General Assembly, and local school boards; and the eradication of de jure segregation while preserving options for de facto segregation—were close to what the 1971 revisers intended. The revision solidified a technocratic approach to educational inputs in the Commonwealth, and it ensured an increased centralization of funding structures and decision-making that would reject any future attempts at racial segregation through local school closures. Looking back on the era that saw Virginia’s “Massive Resistance” swept away and a newfound optimism about effective, non-partisan policymaking fall into place, I conclude that the revision of the education article was a success of its time.

However, today Virginia’s schools face persistent problems of equity. Though on average, Virginia’s public schools produce high quality results, that quality is not experienced equally by all students. In fact, Virginia’s poor students receive significantly less funding than their wealthier counterparts,¹¹11.Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB].Show More despite having significantly more need, and they perform considerably worse according to the National Assessment of Educational Progress (NAEP).¹²12.See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program).Show More Nor is segregation gone. Though de jure segregation and public school defunding have been successfully eradicated, de facto segregation is now on the rise. The number of hyper-segregated, highly impoverished schools has nearly doubled in Virginia since 2003.¹³13.Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q].Show More

While many scholars and advocates argue that such inequities comprise state constitutional violations best fixed by a court, I conclude that this is simply not so in Virginia. The 1971 revision of the Virginia Constitution was not meant to solve these problems.¹⁴14.In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note.Show More In fact, Virginia’s voters have never had a state-wide discussion of educational equity and integration, nor have they been forced to make a commitment to such values.

As our nation has been rocked by protests against racial injustice and ravaged by a new pandemic that has wreaked havoc on communities of color, in particular, issues of race and inequity have been shoved to the forefront of public dialogue in a way few of us have before confronted. The time is ripe for Virginia to finally finish the work begun fifty years ago. A new constitutional amendment to Virginia’s education article could facilitate this conversation. In 1971, Virginia’s leaders wanted to make education a priority for the first time and decided to take the first step away from active segregation. Today, it is time to reshape our education article yet again, with a vision of equity and excellence that will finish the journey away from segregation and finally step toward a shared, fair shot at the future for our children.

* J.D., University of Virginia School of Law, 2021; M.P.P., Frank Batten School of Leadership and Public Policy, 2021; M.Ed., University of Massachusetts, 2013. I am sincerely grateful to Professor A.E. Dick Howard for guiding my research for this Note, and to Professors Kimberly Robinson and Andy Block for providing me with important learning experiences that expanded my knowledge of education and policy in Virginia. I also want to express my gratitude to the members of the Virginia Law Review who assisted in the editing and preparation of the Note—particularly Matthew West and Matthew Kincaid. ↑
2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974). ↑
Va. Const. art. I, § 15. ↑
Howard, supra note 1, at 879–80. ↑
Id. at 880. ↑
Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev

.

735, 783 (2018). ↑
James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988). ↑
See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010). ↑
See infra Part I. ↑
See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam). ↑
See infra Part II. ↑
Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB]. ↑
See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program). ↑
Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q]. ↑
In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note. ↑
Howard, supra note 1, at 880–81; Salmon, supra note 7, at 144–45. ↑
Howard, supra note 1, at 881 (citing Va. Const. of 1870, art. VIII, § 1). ↑
Id. at 881–82 (citing Va. Const. of 1870, art. VIII, § 3). ↑
Salmon, supra note 7, at 146. ↑
Id. ↑
Howard, supra note 1, at 882. ↑
Va. Const. of 1902, art. IX, § 140. ↑
Salmon, supra note 7, at 146–48. ↑
Id. at 147–48. ↑
Id. ↑
Va. Const. of 1902, art. II, § 21; Douglas Smith, “When Reason Collides with Prejudice”: Armistead L. Boothe and the Politics of Desegregation in Virginia, 1948–1963, 102 Va. Mag. Hist. & Biography 5, 6 (1994). ↑
Va. Const. of 1902, art. II, § 19; Wythe W. Holt, Jr., The Virginia Constitutional Convention of 1901–1902: A Reform Movement Which Lacked Substance, 76 Va. Mag. Hist. & Biography 67, 96 (1968). ↑
Smith, supra note 25, at 6. ↑
Id. See generally J. Harvie Wilkinson, III, Harry Byrd and the Changing Face of Virginia Politics 1945–1966 (1968) (describing the political structures supporting Byrd and the changing role of Byrd’s organization in Virginia politics). ↑
See, e.g., Richard F. Weingroff, Senator Harry Flood Byrd of Virginia—the Pay-As-You-Go Man, U.S. Dep’t of Transp., https://www.fhwa.dot.gov/infrastructure/byrd.cfm [https://perma.cc/Y9Z8-MVDY] (last visited June 4, 2021) (describing Byrd’s gubernatorial platform as a plan “to institute the best methods of efficiency and economy in State affairs”); Massive Resistance, Va. Museum Hist. & Culture, https://www.virginiahistory.org/‌collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/massive [https://perma.cc/CXA6-CRS3] (last visited Sept. 1, 2020) (describing Byrd’s leadership of Massive Resistance). ↑
J. Rupert Picott, The Status of Educational Desegregation in Virginia, 25 J. Negro Educ

.

345, 346 (1956). ↑
Id. at 346–47 (citing Gray Commission, Public Education Report of the Commission to the Governor of Virginia 9, 11 (1955)). ↑
Charles H. Ford & Jeffrey L. Littlejohn, Reconstructing the Old Dominion: Lewis F. Powell, Stuart T. Saunders, and the Virginia Industrialization Group, 1958–65, 121 Va. Mag. Hist. & Biography 147–48 (2013). ↑
Va. Museum Hist. & Culture, supra note 29. ↑
Harrison v. Day, 106 S.E.2d 636, 646 (Va. 1959). ↑
Id. at 647. ↑
The Closing of Prince Edward County Schools, Va. Museum Hist. & Culture, https://www.virginiahistory.org/collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/closing-prince [https://perma.cc/FX34-5RQ5] (last visited Sept. 1, 2020). ↑
Id. See generally Kristen Green, Something Must Be Done About Prince Edward County (2015) (recounting the struggle for integration in the county). ↑
Va. Museum Hist. & Culture, supra note 36; see also Griffin v. Cty. Sch. Bd., 377 U.S. 218, 231 (1964) (explaining that this policy existed “for one reason, and one reason only: to ensure . . . that white and colored children in Prince Edward County would not, under any circumstances, go to the same school”). ↑
Griffin, 377 U.S. at 230. ↑
Id. at 232. Note that this litigation is actually an extension of the Brown v. Board litigation from Prince Edward County. Interestingly, the equality at issue was not equal treatment of races but equal treatment of students in different counties in Virginia. The Court, however, also saw the practice as a thinly veiled attempt at continuing the segregation outlawed by Brown. See id. at 220–21. ↑
Cty. Sch. Bd. v. Griffin, 133 S.E.2d 565 (Va. 1963). ↑
Id. at 565, 578. ↑
Va. Const. of 1902, art. IX, § 129 (“The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”). ↑
Griffin, 133 S.E.2d at 573. ↑
Id. at 577–78 (“It is for the General Assembly first to determine whether the failure of a locality to cooperate and assume its responsibility renders the system inefficient. It doubtless has the power to shape its appropriations for public schools under § 135 of the Constitution to correct an inefficiency in its established system, but that is in the area of legislative discretion, not in itself a constitutional requirement. The question of the efficiency of the system and whether it meets the constitutional requirement of § 129 becomes a matter of law only if it clearly appears that the system has broken down and adherence to it amounts to a disregard of constitutional requirements.”). ↑
Hullihen W. Moore, In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971, 5 U. Rich. L. Rev. 263, 266–67 (1971). ↑
See Ford & Littlejohn, supra note 32, at 149; James H. Hershman, Jr., Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority, in The Moderates’ Dilemma: Massive Resistance to School Desegregation in Virginia 104 (Matthew D. Lassiter & Andrew B. Lewis eds., 1998). ↑
The Twenty-Fourth Amendment to the U.S. Constitution passed Congress in 1962 and was ratified in 1964, banning poll taxes for federal elections. Virginia was one of four states that tried to keep a state election poll tax in place, but was sharply admonished by the Supreme Court for doing so in Harper v. Virginia State Board of Elections. 383 U.S. 663, 666 (1966). ↑
James R. Sweeney, Southern Strategies: The 1970 Election for the United States Senate in Virginia, 106 Va. Mag. Hist. & Biography 165, 166 (1998). ↑
See, e.g., Markus Schmidt, The Voting Rights Act of 1965—How America Did Overcome, Rich. Times-Dispatch (Aug. 1, 2015), https://richmond.com/news/local/government-politics/the-voting-rights-act-of-1965—how-america-did-overcome/article_7d47ec7d-bf98-5014-8e25-5c72b2617a39.html [https://perma.cc/8XM5-MYFD]. ↑
Baker v. Carr held that federal courts could review state redistricting choices, paving the way for Reynolds v. Sims, the case requiring state legislatures to apportion on a roughly equal population basis. Baker v. Carr, 369 U.S. 186, 197–98 (1962); Reynolds v. Sims, 377 U.S. 533, 575–77 (1964). See also, Sweeney, supra note 49, at 166 (“[T]he United States Supreme Court undermined the controlling influence of rural areas in the apportionment of state legislatures.”). ↑
Sweeney, supra note 49, at 165–66. ↑
M. Caldwell Butler, A Republican Looks at the 1968 Virginia General Assembly, 45 U. Va. News Letter 1 (Inst. Gov’t, Charlottesville, Va.), Sept. 15, 1968. ↑
A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, in 1 State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform 77 (G. Alan Tarr & Robert F. Williams eds., 2005). ↑
Id. at 74. ↑
Id. at 74–75. ↑
Id. at 76–77. ↑
Id. at 77. ↑
Id. ↑
Id. at 82. ↑
Id. at 83. ↑
Id. at 78, 80–83. ↑
Id. at 85. ↑
Compare Va. Const. of 1902, art. IX, §§ 130, 132, with Va. Const. art. VIII, §§ 4–5. ↑
Compare Va. Const. of 1902, art. IX, § 139, with Va. Const. art. VIII, § 3. ↑
Compare Va. Const. of 1902, art. IX, § 131, with Va. Const. art. VIII, § 6. ↑
Compare Va. Const. of 1902, art. IX, §§ 134–135, with Va. Const. art. VIII, § 8. ↑
Report of the School Division Criteria Study Commission to the Governor and the General Assembly of Virginia, S. Doc. No. 5, at 7 (1973). This focus on district size and efficiency was a reflection of the technocratic movement of the time. Emmy Lindstam, Support for Technocratic Decision-Making in the OECD Countries: Attitudes Toward Apolitical Politics 5–6 (May 2014) (B.A. thesis, University of Barcelona) (on file with University of Barcelona). ↑
Compare Va. Const. of 1902, art. IX, §§ 133, 136, with Va. Const., art. VIII, § 7. While district consolidation was a controversial issue on the subject of integration in many ways, the provision ultimately at issue here was only technical—solving the problem of multiple school boards in one county. The originally proposed Section 5(a), unrelated, suggested that the Board have sole power to draw division lines, excluding the General Assembly from the consolidation process. Howard, supra note 1, at 920–21. As ultimately passed, the General Assembly sets limits on this power. Va. Const., art. VIII, § 5(a). ↑
Va. Const. of 1902, art. IX, § 140. ↑
Comm’n on Const. Revision, The Constitution of Virginia: Report 256–57 (1969). ↑
Hershman, supra note 47, at 104. ↑
Comm’n on Const. Revision, supra note 71, at 254. ↑
Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). ↑
Comm’n on Const. Revision, supra note 71, at 99. ↑
Howard, supra note 1, at 896. ↑
Va. Const. of 1902, art. IX, § 129. ↑
Va. Const. art. VIII, § 1. ↑
Id. Note that the Commission did not discuss this choice directly in their commentary. Comm’n on Const. Revision, supra note 71, at 254–56. ↑
Va. Const. art. VIII, § 1. ↑
Comm’n on Const. Revision, supra note 71, at 257–58. ↑
310 F. Supp. 572 (W.D. Va. 1969). ↑
Howard, supra note 1, at 895–96. ↑
Compare Va. Const. of 1902, art. IX, § 138, with Va. Const. art. VIII, § 3 (describing compulsory education standards). In 1971, the drafters included that the “appropriate age” of compulsory education was “to be determined by law.” Id. ↑
Moore, supra note 46, at 278–79. ↑
Id. at 280–81. ↑
Va. Const. art. VIII, § 2. ↑
Id. ↑
Moore, supra note 46, at 276–77. ↑
For a literature review of technocracy that highlights the widespread optimism in the 1960s and 70s that “technocracy appeared to be a feasible future form of government[,]” see Lindstam, supra note 68. ↑
The standards are currently found in the Code of Virginia. See Va. Code Ann. §§ 22.1-253.13:1–22.1-253.13:9 (2020). ↑
It is important to clarify that this Note speaks of retrospectively rejecting Massive Resistance as a different object than prospectively achieving integration. Modern readers may struggle to differentiate the two, seeing all forms of segregation as equally bad. However, to a 1971 reviser, spurning Massive Resistance was a very different political choice than embracing racial integration. ↑
See Lindstam, supra note 68, at 5 and accompanying text. ↑
Va. Const. art. VIII, § 2. ↑
See, e.g., James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 1–8 (2010). ↑
Id. at 13. ↑
Virginia Magazine highlighted the sudden (perhaps imagined) threat the public felt of “increasing budget deficits, higher local taxes, and the withdrawal of government spending streams that had lifted so many parts of the Old Dominion from structural underemployment[,]” including a concern that the federal government would withdraw its Naval Base and other investments from the state. Ford & Littlejohn, supra note 32, at 149–51. Business Week predicted a massive rise in local property taxes, and Dr. Loren A. Thompson called Massive Resistance an “Education Crisis” that was “the main reason that Virginia was falling behind other states in attracting new industries and businesses.” Id. at 154. In other words, negative press coverage about the state predicted economic harm to white elites, a prospect that moderates wanted to avoid. ↑
Id. at 149, 152–54. ↑
Hershman, supra note 47, at 104–05. ↑
Va. Const. art. VIII, § 1. ↑
Va. Const. art. VIII, § 2. ↑
Howard, supra note 1, at 901. ↑
Va. Const. art. VIII, §§ 2, 5(e); Howard, supra note 1, at 901–04. ↑
Infra notes 110–14 and accompanying text. ↑
1972–73 Op. Va. Att’y Gen. 353. ↑
1975–76 Op. Va. Att’y Gen. 313. ↑
1980–81 Op. Va. Att’y Gen

.

79–85. ↑
Id. ↑
Acts of the Virginia legislature are granted a “presumption of constitutional validity.” Sch. Bd. v. Parham, 243 S.E.2d 468, 472 (Va. 1978). For the court to declare a statute unconstitutional requires a clear violation. A mere “shadow [of a doubt about constitutionality] is not enough.” Lipscomb v. Nuckols, 172 S.E. 886, 889 (Va. 1934). ↑
Scott v. Commonwealth, 443 S.E.2d 138, 139 (Va. 1994). ↑
Id. at 140. ↑
Id. ↑
Id. at 142. Note that Scott did leave open the possibility of an adequacy challenge; the Court indicated that students might have an individual right to a certain level of education. Id. (“[T]he Students do not contend that the manner of funding prevents their schools from meeting the standards of quality.”). ↑
Va. Code Ann. § 22-19.1 (1973) (describing the issuance procedure). ↑
See, e.g., 1972 Va. Acts 1032–36. ↑
See 1984 Va. Acts 1572–76, 1655–59. ↑
Joint Legislative Audit & Review Comm’n of the Va. Gen. Assembly (“JLARC”), Review of Elementary and Secondary School Funding 27 (2002), http://jlarc.virginia.gov/pdfs/reports/Rpt277.pdf [https://perma.cc/W8VG-AN4S]. ↑
Va. Code Ann

.

§ 22.1-18.01 (2020). ↑
See Va. Bd. of Educ., October 2019 Meeting Update 3 (2019), https://www.vsba.org/images/uploads/October_2019_Meeting_Report.pdf [https://perma.cc/SM4R-JCQS]. ↑
See Va. Att’y Gen., Opinion Letter (Jan. 4, 2019), https://www.oag.state.va.us/files/Opinions/2019/18-046-Opinion-to-Senator-Stanley-Issued.pdf [https://perma.cc/DPG8-JJXK]; 2002 Op. Va. Att’y Gen.

54

n

.29

. ↑
Justin Mattingly, Schools Across Virginia, Richmond Region, Fare Better Under New Accreditation Standards, Rich. Times-Dispatch (Sept. 27, 2018), https://www.richmond.com/news/local/education/schools-across-virginia-richmond-region-fare-better-under-new-accreditation/article_ecaddfcd-9a08-534d-960f-9ab5266fc3cb.html [https://perma.cc/4WSB-R7X2] (demonstrating the Board’s effort to use data to evaluate schools more accurately); Va. Bd. of Educ., Comprehensive Plan

: 2018–2023,

at

4–6

(2017), https://www.doe.virginia.gov/boe/plan/comprehensive-plan.pdf [https://perma.cc/P9ZC-9ESH]; Va. Bd. of Educ., 2013 Annual Report on the Condition and Needs of Public Schools in Virginia app. A, at 36–37 (2013), https://www.doe.virginia.gov/boe/reports/annual_reports/2013_appendix_a_sol_history.pdf [https://perma.cc/7M78-HTXQ]. ↑
See, e.g., Davis Burroughs, Virginia Board of Education Seeks Nearly $1 Billion in New K–12 Funding, Va. Dogwood (Oct. 17, 2019), https://vadogwood.com/2019/10/17/virginia-board-of-education-seeks-nearly-1-billion-in-new-k-12-funding/ [https://perma.cc/BJ4W-C22Y] (describing the Board’s 2019 political push for expanded at-risk funding in service of “equitable outcomes” for disadvantaged children). ↑
Id. ↑
Justin Mattingly, It Was a Landmark Year for Education Funding in Virginia—Until COVID-19, Rich. Times-Dispatch (Apr. 24, 2020), https://richmond.com/news/virginia/it-was-a-landmark-year-for-education-funding-in-virginia—until-covid-19/article_c50665a6-172d-5f56-a1b0-43240cfff68d.html [https://perma.cc/J4F9-5WH9]. ↑
Professor Salmon suggests that the complexity of this formula was a direct response to Burruss v. Wilkerson and an attempt to avoid equal rights litigation over school funding. Salmon, supra note 7, at 151. ↑
Id. at 152. ↑
Id. at 152–53. ↑
Id. at 153. ↑
Va. Code Ann. § 22.1-199.1 (2020). ↑
JLARC, supra note 117, at iv–vi; Salmon, supra note 7, at 155. ↑
Schuyler VanValkenburg, Jeff Bourne & Mike Mullin, A Student Who Is Safe Is a Student Who Is Safe to Learn, Rich. Times-Dispatch

(

Mar. 31, 2019), https://www.richmond.com/opinion/columnists/vanvalkenburg-bourne-and-mullin-column-a-student-who-is-safe/article_db7679dc-4f32-50fc-901e-deeac5550033.html [https://perma.cc/6WUT-GVAS]. ↑
Daniella Cheslow, In Shadow of Coronavirus, Virginia Lawmakers to Freeze New Spending in State Budget, WAMU 88.5 (Apr. 22, 2020), https://wamu.org/story/20/04/22/in-shadow-of-coronavirus-virginia-lawmakers-to-freeze-new-spending-in-state-budget/ [https://perma.cc/58FH-9UXM]. ↑
Nat’l Educ. Ass’n, Rankings of the States 2018 and Estimates of School Statistics 2019, at 33 (2019), https://www.nea.org/sites/default/files/2020-06/2019%20Rankings%20and%20Estimates%20Report.pdf [https://perma.cc/3KFT-GFQ6]. ↑
Editorial, Did the Virginia Supreme Court Show School Districts How to Sue Over Disparities?, Roanoke Times (Oct. 20, 2018), https://roanoke.com/opinion/editorials/‌editorial-did-the-virginia-supreme-court-show-school-districts-how-to-sue-over-disparities/article_f3e07697-879d-50d1-9ac9-573b741856c7.html [https://perma.cc/LF7H-HFMP]. ↑
Baker et al., supra note 11, at

11; Bruce Baker, Danielle Farrie, Theresa Luhm & David G. Sciarra, Is School Funding Fair? A National Report Card 5 (5th ed. 2016); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 16 (3d ed. 2014); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 14 (2d ed. 2012); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 32 (2010). ↑
Comm’n on Constitutional Revision, supra note 71, at 254. ↑
Va. Const. art. VIII, § 1. ↑
Ryan, supra note 95, at 5. ↑
Id. at 55–109. ↑
Id. at 56; Green v. Cty. Sch. Bd., 391 U.S. 430, 433–35 (1968); U.S. Comm’n on Civil Rights, Southern School Desegregation, 1966–67, at 45–47 (1967), https://www.crmvet.org/docs/ccr_sch_desegregation_south_6707.pdf [https://perma.cc/89N8-RAPJ]. ↑
Ryan, supra note 95, at 56; The Memphis 13 (Daniel Kiel 2012), https://thememphis13.com [https://perma.cc/B65A-VV7G]. ↑
Green, 391 U.S. at 437–41. ↑
Ryan, supra note 95, at 72. ↑
Bradley v. Sch. Bd., 345 F.2d 310, 316 (4th Cir. 1965). ↑
Ryan, supra note 95, at 73; Bradley v. Sch. Bd., 416 U.S. 696, 701 (1974) (“[O]n March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green . . . .”). ↑
Ryan, supra note 95, at 74; Bradley v. Sch. Bd., 317 F. Supp. 555, 578–79 (E.D. Va. 1970). ↑
Ryan, supra note 95, at 74–82. ↑
Id. at 82–84; Bradley v. Sch. Bd., 338 F. Supp. 67, 105 (E.D. Va. 1972). ↑
Bradley v. Sch. Bd., 462 F.2d 1058, 1066 (4th Cir. 1972) (“We think that the root causes of the concentration of [B]lacks in the inner cities of America are simply not known . . . .”). ↑
Rich. Sch. Bd. v. Bd. of Educ., 412 U.S. 92, 93 (1973). ↑
Ryan, supra note 95, at 78, 80. ↑
Id. at 80. ↑
418 U.S. 717, 752–53 (1974). ↑
Id. at 745. ↑
Kimberly Jenkins Robinson, Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools, 88 N.C. L. Rev. 787, 817–19 (2010). ↑
See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016) (“1. The school divisions as they exist on July 1, 1978, shall be and remain the school divisions of the Commonwealth until further action of the Board of Education taken in accordance with the provisions of this section except that when a town becomes an independent city, the town shall also become a school division. 2. No school division shall be divided or consolidated without the consent of the school board thereof and the governing body of the county or city . . . 3. No change shall be made in the composition of any school division if such change conflicts with any joint resolution . . . of the General Assembly . . . .”). Note that this statute strips the Board of its constitutional power to draw division lines in ways that best promote the standards of quality. See Angela Ciolfi, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773, 808–13 (2003). ↑
See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016). ↑
See Robinson, supra note 155, at 811–39 (arguing that the Court has validated resegregation in schools). ↑
See, e.g., Genevieve Siegel-Hawley, Jennifer Ayscue, John Kuscera & Gary Orfield, Miles to Go: A Report on School Segregation in Virginia, 1989–2010, at v (2013)

(

describing increases in Virginia’s hyper-segregated schools since 1989). ↑
551 U.S. 701, 747–48 (2007). ↑
Id. ↑
Id. at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). ↑
Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Pew Rsch. Ctr., Most Americans Say There Is Too Much Economic Inequality in the U.S., but Fewer than Half Call It a Top Priority 19–22 (2020), https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth-inequality/ [https://perma.cc/BGG6-DPM8]. ↑
Duncombe & Cassidy, supra note 13, at 1. ↑
Id. This does not account for Black children who are relegated to lower-tracked classrooms or face other intra-school segregation. See Karolyn Tyson, Tracking, Segregation, and the Opportunity Gap: What We Know and Why It Matters, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance

170, 180 (

Prudence L. Carter & Kevin G. Welner eds

., 2013).

↑
Audra D.S. Burch, James Monroe Enslaved Hundreds. Their Descendants Still Live Next Door., N.Y. Times (July 7, 2019), https://www.nytimes.com/2019/07/07/us/politics/monroe-slavery-highland.html [https://perma.cc/LZ6R-KYHL]. ↑
Household Income in Virginia, Statistical Atlas, https://statisticalatlas.com/state/Virginia/Household-Income [https://perma.cc/VY6A-ABBS] (last visited June 1, 2020) (showing that Black families in Virginia are twice as likely as the general population to be represented in the lowest three income brackets). ↑
Food Rsch. & Action Ctr., Poverty, Hunger, Health, and the Federal Nutrition Programs: A Profile of the Southern Region 13–14 (2020), https://frac.org/wp-content/uploads/FRAC-Poverty-Hunger-Health-and-the-Federal-Nutrition-Programs-2020.pdf [https://perma.cc/8W6U-7PKP]. ↑
Kathryn Howell, RVA Eviction Lab, Eviction and Educational Instability in Richmond, Virginia 3 (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Eviction-and-Educational-Instability-in-Richmond.pdf [https://perma.cc/EU4J-Z7BP] (showing significantly higher eviction rates in school districts with large Black student populations). ↑
Food Rsch. & Action Ctr., supra note 168, at 16–18. ↑
Dep’t of State Police

,

Crime in Virginia

2019,

at

54 (2020), https://www.vsp.virginia.gov/downloads/Crime_in_Virginia/Crime_In_Virginia_2019.pdf [https://perma.cc/4TAJ-UHUA] (finding that 45% of violent crimes with known victims in Virginia in 2019 had Black victims, while Black Virginian’s only make up 20% of the Virginia population); Vera Inst., Incarceration Trends in Virginia 1 (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-virginia.pdf [https://perma.cc/VWX9-LSGD]. ↑
In 2019, Blacks—who make up only 20% of the Virginia population—made up 42% of all arrests. Dep’t of State Police, supra note 171, at

70–71. Additionally, they represent over half of Virginia’s prison population. Vera Inst., supra note 171, at 1. ↑
Prosperity Now Scorecard, State Outcome & Policy Report: Virginia 4 (2021), https://scorecard.prosperitynow.org/data-by-location#state/va [https://perma.cc/AE77-ZQRK] (last visited Sept. 20, 2020) (select “download state outcome & policy report,” then search “Virginia” in the state field, and select “download PDF”) (showing that while 72% of white families in Virginia own homes, fewer than half of Black families own homes); see also Ta-Nehisi Coates, The Case for Reparations, Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/76HH-BJ2J] (describing historic attempts to deprive Black families of property). ↑
Va. Dep’t of Hous. and Cmty. Dev., Analysis of Impediments to Fair Housing Choice in the Commonwealth of Virginia

36

(2018), https://www.dhcd.virginia.gov/sites/default/files/Docx/consolidated-plan/analysis-of-the-impediments-to-fair-housing.pdf [https://perma.cc/XE39-CB8J]. ↑
Benjamin F. Teresa, RVA Eviction Lab, The Geography of Eviction in Richmond: Beyond Poverty (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Geographies-of-Eviction.pdf [https://perma.cc/G5TF-K7QT]. ↑
See Achievement Gaps Dashboard, supra note 12 (comparing Black eligible students in Virginia with white eligible students). ↑
Id. ↑
Virginia Early Childhood Foundation found, for example, that Black students who showed up to school kindergarten-ready fell behind significantly faster than their white or Asian peers. By third grade, the number of Black children from the same cohort not meeting literacy benchmarks had more than doubled. Va. Early Childhood Found., Virginia’s Biennial School Readiness Report Card 6 (2018), https://www.vecf.org/wp-content/plugins/pdf-viewer/stable/web/viewer.html?file=https://www.vecf.org/wp-content/uploads/2018/10/VECF2018BiennialSchoolReadinessReport.pdf [https://perma.cc/AZ48-TTAS]. ↑
Class of 2020 Diplomas and Completion, Va. Dep’t of Educ. Sch. Quality Profiles, https://schoolquality.virginia.gov/virginia-state-quality-profile#desktopTabs-4 [https://perma.cc/YEL2-TGR8] (last visited Sept. 1, 2020). ↑
College Board, SAT Suite of Assessments Annual Report: Virginia

3, 8, 13

(2019), https://reports.collegeboard.org/pdf/2019-virginia-sat-suite-assessments-annual-report.pdf [https://perma.cc/K927-KKYA]; The ACT, The Condition of College & Career Readiness 2019, Virginia Key Findings 7 (2019), http://www.act.org/content/dam/act/unsecured/documents/‌cccr-2019/Virginia-CCCR-2019.pdf [https://perma.cc/A6DN-7ZKY]. ↑
Statistical Atlas, supra note 167 (showing Blacks twice as likely as the general population to be represented in the lowest three income brackets). ↑
This Note does not discuss the 1960s federal immigration laws, mostly because Virginia’s Hispanic population remains quite small today, and most immigrants to the state of other races are fairly well-off (Virginia’s Asian population is one of the wealthiest groups in the country). Demographic and Economic Profiles of Hispanics by State and County, 2014: Virginia, Pew Rsch. Ctr., https://www.pewresearch.org/hispanic/states/state/va [https://perma.cc/JK4K-5D9S] (last visited Mar. 14, 2021); Zinie Chen Sampson, Virginia’s Asian Population Grows, Free Lance-Star (May 28, 2011), https://fredericksburg.com/local/virginias-asian-population-grows/article_ae0fc9e6-8af4-5dec-a7c7-35257f4a0f30.html [https://perma.cc/DR33-3MCE]. However, many of the disparities noted above are also true for the small but growing Hispanic community in Virginia, which has been hit especially hard by Coronavirus. Mechelle Hankerson, ‘My Community Doesn’t Have a Voice’: Are Virginia Schools Meeting the Needs of an Increasing Hispanic Population?, Va. Mercury (Sept. 16, 2019), https://www.virginiamercury.com/2019/09/16/my-community-doesnt-have-a-voice-are-virginia-schools-meeting-the-needs-of-an-increasing-hispanic-population/ [https://perma.cc/D5BH-3SDR]; Kate Masters, Latinos Shoulder a Disproportionate Share of COVID-19 Cases. Advocates Want More Representation in Contact Tracing., Va. Mercury (June 26, 2020), https://www.virginiamercury.com/2020/06/26/latinos-shoulder-a-disproportionate-share-of-covid-19-cases-advocates-wants-more-representation-in-contact-tracing/ [https://perma.cc/G33E-H8PB]. ↑
Southwestern Virginia has been hit particularly hard by the opioid epidemic but also faces other economic and healthcare struggles. For an excellent read on the region, see generally Beth Macy, Dopesick: Dealers, Doctors, and the Drug Company that Addicted America (2018). ↑
Robinson v. Cahill, 303 A.2d 273, 291 (N.J. 1973) (citing N.J. Const. of 1844, art. IV, § 7 (1875)). ↑
State Profiles: New Jersey, Educ. L. Ctr., https://edlawcenter.org/states/newjersey.html [https://perma.cc/8FF5-G72R] (last visited Sept. 1, 2020). ↑
See, e.g., Borough of Neptune City v. Borough of Avon by the Sea, 294 A.2d 47, 51, 56 (N.J. 1972) (holding that municipalities may not charge for beach use, due to the public trust doctrine); S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) (holding that municipalities cannot use zoning laws to prohibit affordable housing for middle- and low-income residents); State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971) (holding that migrant workers can have access to necessary services despite traditional property law rules). ↑
J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265, 2274 (1997) (reviewing Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges (1996) and David L. Kirp, John P. Dwyer & Larry A. Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia (1995)). ↑
N.J. Const

.

art. VI; id. at art. XI, § IV (describing the new court’s structure and transition plan). ↑
Id. at art. VI, § VII. ↑
Byrne, supra note 187, at 2274. ↑
Arthur T. Vanderbilt, Law Library: American Law and Legal Information, https://law.jrank.org/pages/11066/Vanderbilt-Arthur-T.html [https://perma.cc/Q3LC-798C] (last visited July 5, 2021). ↑
Id. See, e.g., Winberry v. Salisbury, 74 A.2d 406, 414 (N.J. 1950) (holding, in an opinion by Chief Justice Vanderbilt, that the New Jersey Constitution gives power to the courts, not the legislature, to decide rules affecting procedure in the state’s courts). ↑
Many first-year law students will remember reading State v. Shack in their property class. The case is an example of the court’s innovative take on property law. See State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971). ↑
Byrne, supra note 187, at 2274. ↑
Id. ↑
Id. See Educ. L. Ctr., supra note 185. ↑
Bruce D. Baker & Sean P. Corcoran, Ctr. for Am. Progress, The Stealth Inequities of School Funding: How State and Local School Finance Systems Perpetuate Inequitable Student Spending 5 (2012) [hereinafter CAP Report]; see also Baker et al., supra note 11, at 11 (showing New Jersey ranking among the top states in funding distribution in 2015 and Virginia ranking among the lowest); Ryan, supra note 95, at 160 (describing high-poverty schools in New Jersey as “generously funded” due to “school finance litigation”). ↑
Baker et al., supra note 11, at 16–17; see also CAP Report, supra note 197, at 5 (displaying New Jersey’s school funding system from 2007 to 2009). ↑
Baker et al., supra note 11, at 11. ↑
New Jersey is probably recently famous for the debacle of education reform in Newark Schools, in which millions of dollars were raised, but the classrooms never saw the money. See Dale Russakoff, Schooled, New Yorker (May 12, 2014), https://www.newyorker.com/magazine/2014/05/19/schooled [https://perma.cc/5TST-B7KM]. ↑
Race and Ethnic Achievement Gaps, Stan. Ctr. for Educ. Pol’y Analysis, https://cepa.stanford.edu/educational-opportunity-monitoring-project/achievement-gaps/race/ [https://perma.cc/R3CH-WG2C] (last visited June 2, 2020). ↑
U.S. Dep’t of Educ., School Composition and the Black-White Achievement Gap 24 (2015), https://nces.ed.gov/nationsreportcard/subject/studies/pdf/school_composition_and_‌the_bw_achievement_gap_2015.pdf [https://perma.cc/DM6C-MCMZ] [hereinafter School Composition]. ↑
Like Virginia, New Jersey has some of the best-ranked public schools in the nation. See, e.g., U.S. News Best High Schools Rankings, U.S. News & World Rep., https://www.usnews.com/education/best-high-schools/rankings-overview (last visited Mar. 20, 2020) (listing a school in Northern Virginia as the best public high school in the nation). ↑
State Performance Compared to the Nation, Nation’s Rep. Card, https://www.nationsreportcard.gov/profiles/stateprofile?chort=1&sub=MAT&sj=AL&sfj=NP&st=MN&year=2019R3 [https://perma.cc/JH8Y-SXAG] (last visited June 9, 2021) (choose “Grade 4,” toggle between “Mathematics” and “Reading,” and select “Average scale scores” and “2019”). ↑
N.J. Const. art. VIII, § IV. ↑
Id. ↑
Ryan, supra note 95, at 146. ↑
Baker et al., supra note 11, at 10–11, 16, 17. ↑
Stan. Ctr. for Educ. Pol’y Analysis, supra note 201. ↑
Fourth-grade reading ranks third in the nation, and fourth-grade math ranks seventh. In eighth grade, rankings drop slightly. Nation’s Rep. Card, supra note 204. ↑
Wyo. Const. art. VII, § 8. ↑
Id. at art. VII, § 1. ↑
Id. at art. VII, § 10. Wyoming is known as the ‘equality state’ because it was the first state to grant women suffrage, and did so from its inception. Id. at art. VI, § 1. ↑
Id. at art. VII, § 14. ↑
Id. at art. VII, § 11. ↑
606 P.2d 310, 314, 320 (Wyo. 1980). ↑
Id. at 314–15. ↑
Id. at 315 n.3. ↑
Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1246–47 (Wyo. 1995). ↑
Id. at 1238, 1247–48. ↑
Id. at 1249–50. ↑
Id. at 1279–80. ↑
Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). Scott occurred just one year before Campbell County. The difference in the level of analysis and detail in the opinions is remarkable. ↑
Campbell Cty. Sch. Dist., 907 P.2d at 1279. ↑
Virginia has a population of over 8 million, while Wyoming’s population has yet to cross 600,000. Race and Ethnicity in Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑
Race and Ethnicity in Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑
U.S. Dep’t of Educ., supra note 202, at 23 n.21, 24–25. ↑
See supra note 213 and accompanying text. ↑
Wyoming did not become a state until 1890, after slavery was outlawed in the United States. The state constitution began with statements of racial equality. See Wyo. Const. art. I, § 2. This is not to say that Wyoming avoided all discrimination, but rather, it was never as entrenched as was the case in Virginia. See, e.g., Kim Ibach & William Howard Moore, The Emerging Civil Rights Movement: The 1957 Wyoming Public Accommodations Statute as a Case Study, 73 Annals of Wyo. 2, 3 (2001). ↑
One of the biggest advocates for education funding in Virginia is rural Republican State Senator Bill Stanley, who has recognized that there are striking similarities in the needs of rural and urban school districts. Amy Friedenberger, ‘Facing a Dire Need’ for Funding for School Construction, Virginia Lawmakers Pitch Proposals, Roanoke Times (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for-funding-for-school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780-b87a44d8a0fa.html [https://perma.cc/6GYC-T3TM]; see also Macy, supra note 183 (describing life in rural Virginia). ↑
Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia from Deep Red to Solid Blue, N.Y. Times (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html [https://perma.cc/X8Q6-LXNK]. ↑
See, e.g., Wyoming Education Ranked 6th in Nation by the National Education Quality Report,

KULR8

News (Sept. 5, 2019), https://www.kulr8.com/news/wyoming-education-ranked-th-in-nation-by-the-national-education/article_e2dcc056-d036-11e9-a031-9f508f484af7.html [https://perma.cc/2WMW-4BBF] (quoting State Superintendent of Public Instruction Jillian Balow). ↑
See supra Section III.B. ↑
See supra notes 111–115 and accompanying text. ↑
See supra notes 216–232 and accompanying text. ↑
See supra notes 211–212 and accompanying text. ↑
See supra Part II. ↑
Richmond’s private school attendance rate, around 30%, is significantly higher than the national average. Libby Germer, A Public History of Public Housing: Richmond, Virginia, Yale Nat’l Initiative to Strengthen Teaching in Pub. Schs. (last visited Sept. 23, 2020), https://teachers.yale.edu/curriculum/viewer/initiative_15.03.05_u [https://perma.cc/XDQ2-HRL2]. The national average in the United States has consistently hovered around 10%. Jack Jennings, Proportion of U.S. Students in Private Schools is 10 Percent and Declining, Huffington Post (Mar. 28, 2012, 12:31 PM), https://www.huffpost.com/entry/proportion-of-us-students_b_2950948 [https://perma.cc/TZ9Z-S534]. ↑
Va. Code Ann. § 22.1-25(A) (2016). See also Ciolfi, supra note 156, at 807 (suggesting the unconstitutionality of current division in lines in Virginia because they do not promote or realize the standards of quality). ↑
See supra note 167 and accompanying text. ↑
See supra Section III.C; Duncombe & Cassidy, supra note 13. ↑
See supra Part I. ↑
See supra Part II. ↑
See supra Part III. ↑
See supra Part IV. ↑
In fact, it is unclear if those in the middle are doing particularly well. While federally required data highlights children below the federal poverty level as a group, it aggregates all other children together, hiding the wide disparities in outcomes between the middle and the very rich. See Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite 124–33 (2019). We may be missing important trends in achievement and education amongst middle- and working- class children. Though school reformers may still be focused on the plight of the poor, increasing attention to the middle— and better disaggregating data—may shed light on even more concerning trends. ↑
Duncombe & Cassidy, supra note 13, at 1. ↑
Ryan, supra note 95, at 149–50. ↑
This Note does not address charter schools because Virginia has very few, and the movement hasn’t gained much ground in the Commonwealth. Virginia’s Public Charter Schools, Va. Dep’t of Educ., https://www.doe.virginia.gov/instruction/charter_schools/‌charter_schools.shtml [https://perma.cc/4YD3-W3LZ] (last visited June 9, 2021) (listing only 8 charter schools operating in the state); Editorial, A Chance for Charter Schools To Finally Break Through in Virginia, Wash. Post (Feb. 14, 2017), https://www.washingtonpost.com/opinions/a-chance-for-charter-schools-to-finally-break-through-in-virginia/2017/02/14/82e6539e-efd6-11e6-b4ff-ac2cf509efe5_story.html [https://perma.cc/4PZG-BTBB] (discussing the political difficulties). ↑
For the full debate on school governance, see Who’s in Charge Here? The Tangled Web of School Governance and Policy (Epstein ed., 2004). ↑
See, e.g., CAP report, supra note 197, at 17. ↑
See generally, e.g., Kimberly Jenkins Robinson, A Federal Right to Education: Fundamental Questions for Our Democracy

(2019); While advocacy for increased federal help has certainly resulted in more standardized testing and more litigation, as of 2018, federal dollars made up less than 8% of school revenue. Nat’l Educ. Ass’n

,

supra note 133, at 8. For the same reason that a low state share of funding results in greater inequities between districts, a low national share contributes to large inequities between state spending on students. See, e.g., Markovits, supra note 246, at 126–27. ↑
I am not the first scholar to suggest this. See, e.g., Ryan, supra note 95, at 1–14. ↑
See supra Part II. ↑
Alisa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated—And One Idea To Help Change That, NPR (July 7, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial-segregation-in-public-schools [https://perma.cc/SY6Y-KXFL]. ↑
See CAP Report, supra note 197, at 1–2. ↑
See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 14–16 (1973); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392–93 (Tex. 1989); David G. Hinojosa, Rodriguez v. San Antonio Independent School District: Forty Years and Counting, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 24–40 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015). ↑
Hinojosa, supra note 257, at 37–38. ↑
Friedenberger, supra note 230; JLARC Report to the Governor and the General Assembly of Virginia, Efficiency and Effectiveness of K-12 Spending, S. Doc. No. 11 (2015). ↑
Editorial, Lots of Virginia Schools are Outdated. Why That Matters., Roanoke Times (Aug. 15, 2018), https://roanoke.com/opinion/editorials/editorial-lots-of-virginia-schools-are-outdated-why-that-matters/article_cc2a3cbe-f65c-5453-86f6-22c4e846d353.html [https://perma.cc/8NV9-TS6C]; Debbie Truong, ‘Borderline Criminal’: Many Public Schools Teeter on the Edge of Decrepitude, Wash. Post (May 25, 2019, 4:55 PM), https://www.washingtonpost.com/local/education/borderline-criminal-thats-the-condition-of-decrepit-public-schools/2019/05/25/bad60064-556f-11e9-814f-e2f46684196e_story.html [https://perma.cc/9FA5-L3J2]; Brendan King & Chelsea Rarrick, Richmond Teachers Believe Moldy Classrooms are Making Them Sick, CBS 6 News Rich. (Oct. 3, 2016, 11:37 AM), https://www.wtvr.com/2016/10/02/richmond-teachers-believe-moldy-classrooms-are-making-them-sick/. ↑
As of 2018, Richmond’s required construction budget hovered around 800–900 million dollars. Truong, supra note 260. The annual operating budget of Richmond city in that year was about 700 million dollars. City of Rich., Adopted Annual Fiscal Plan for Fiscal Year 2018 (2018) http://www.richmondgov.com/Budget/documents/BiennialPlans/2018_‌AdoptedAnnualFiscalPlan.pdf [https://perma.cc/M94Q-K8A5]. ↑
Cf. Editorial, supra note 260 (describing analogous conditions). See also Zachary Reid, 100 Years Ago, Richmond’s Students Faced a Situation Similar to Today’s: Crumbling Facilities, Rich. Times-Dispatch (Apr. 30, 2016), https://richmond.com/news/local/100-years-ago-richmonds-students-faced-a-situation-similar-to-todays-crumbling-facilities/article_712a5f52-f50d-5bec-a09f-40221195a5be.html [https://perma.cc/M3AT-6DCK] (noting the racial disparities in crumbling school buildings). ↑
Ryan, supra note 95, at 129 (“By all accounts, [the foundation amount] is unrealistically low.”); see also Salmon, supra note 7, at 155–61 (concluding that Virginia’s school funding is inadequate). ↑
The Local Composite Index formula is contained in the biennial budget language. 2020 Va. Acts 153–55. Note that Virginia does have a separate budget line item called the At-Risk Add-On (created shortly after the Scott case), which provides additional funds for disadvantaged students. Va. Code Ann. § 22.1-199.1 (2020). However, it has also suffered from budgetary limitations. See, e.g. Chris Duncombe & Chad Stewart, Virginia Can Choose Equity for School Funding During Economic Crisis (2020), https://www.thecommonwealthinstitute.org/wp-content/uploads/2020/06/Virginia-Can-Choose-Equity-for-School-Funding-During-Economic-Crisis.pdf [https://perma.cc/9UEC-5MRU] (describing the un-allotment of At-Risk funds during economic downturns). ↑
Ryan, supra note 95, at 157–70; CAP Report, supra note 197, at 1–2. ↑
Early Childhood Education, Ctrs. for Disease Control & Prevention (“CDC”), https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html [https://perma.cc/GE3V-QZRD] (last visited Aug. 5, 2016); Tamara Halle et al., The Research Base for a Birth Through Eight State Policy Framework Child Trends (2013), https://www.childtrends.org/wp-content/uploads/2013/12/2013-20ResearchBase.pdf [https://perma.cc/D42D-7L75]. ↑
Preschool, Va. Dep’t of Educ., http://www.doe.virginia.gov/early-childhood/preschool/index.shtml [https://perma.cc/N9YB-4VWH] (last visited Sept. 2, 2020) (showing public options available for needy students; note that non-qualifying students must find private options, which range from home settings to official preschools or daycares); Allison H. Friedman-Krauss et al., The State of Preschool 2018: State Preschool Yearbook 162–63 (2019) (showing that Virginia’s public state preschool program still has limited access, ranking poorly across the board). ↑
See Friedman-Krauss et al., supra note 267, at 162–63. ↑
CDC, supra note 266. ↑
Id.; see also Press Release, Learning Pol’y Inst., What Does the Research Really Say About Preschool Effectiveness? (Jan. 31, 2019), https://learningpolicyinstitute.org/press-release/what-does-research-really-say-about-preschool-effectiveness [https://perma.cc/JAY7-229Z] (reaffirming that children enrolled in preschool reap both short- and long-term benefits). Sarah Jane Glynn, Jane Farrell & Nancy Wu, The Importance of Preschool and Child Care for Working Mothers, Ctr. for Am. Progress (May 7, 2013), https://www.americanprogress.org/issues/education-k-12/reports/2013/05/08/62519/the-importance-of-preschool-and-child-care-for-working-mothers/ [https://perma.cc/2US8-3C3K]; Kelsey Piper, Early Childhood Education Yields Big Benefits—Just Not the Ones You Think, Vox (Oct. 16, 2018, 9:00 AM), https://www.vox.com/future-perfect/2018/10/16/17928164/early-childhood-education-doesnt-teach-kids-fund-it. ↑
CDC, supra note 266. ↑
David M. Quinn & Morgan Polikoff, Summer Learning Loss: What Is It, and What Can We Do About It?, Brookings (Sept. 14, 2017), https://www.brookings.edu/research/summer-learning-loss-what-is-it-and-what-can-we-do-about-it/ [https://perma.cc/4G76-MYYR]; Jaclyn Zubrzycki, Year-Round Schooling Explained, EducationWeek (Dec. 18, 2015), https://www.edweek.org/leadership/year-round-schooling-explained/2015/12 [https://perma.cc/7B9Q-FUD7]. ↑
Afterschool Alliance, What Does the Research Say about Afterschool? (Nov. 2017), http://afterschoolalliance.org/documents/What_Does_the_Research_Say_About_Afterschool.pdf [https://perma.cc/G2ZU-63AB]; Benefits for Youth, Families, & Communities, Youth.Gov, https://youth.gov/youth-topics/afterschool-programs/benefits-youth-families-and-communities [https://perma.cc/X57N-CMXG] (last visited Sept. 1, 2020). ↑
Piper, supra note 270 (explaining why benefits accrue more the closer a program starts to birth). ↑
Editorial, Will Virginia Finally Mandate Equal Schools?, Roanoke Times (Jan. 24, 2020), https://roanoke.com/opinion/editorials/editorial-will-virginia-finally-mandate-equal-schools/article_804e788e-0606-528a-8d90-b048f3300ddc.html [https://perma.cc/6757-QFLY]. ↑
Ciolfi, supra note 156, at 820; Chang & Mehta, supra note 255. ↑
Tyson, supra note 165, at 169–70. ↑
Kimberly A. Goyette, Danielle Farrie & Joshua Freely, This School’s Gone Downhill: Racial Change and Perceived School Quality Among Whites, 59 Soc. Probs. 155, 166–71 (2012) (describing how white parents perceive their school quality to be declining simply as a result of greater numbers of Black children attending the school, regardless of actual metrics); Chase M. Billingham & Matthew O. Hunt, School Racial Composition and Parental Choice: New Evidence on the Preferences of White Parents in the United States, 89 Soc. Educ. 99, 99 (2016) (finding that the “proportion of [B]lack students in a hypothetical school has a consistent and significant inverse association with the likelihood of white parents enrolling their children in that school”). ↑
The Benefits of Socioeconomically and Racially Integrated Classrooms, Century Found. (Apr. 29, 2019), https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/. ↑
Id. (finding that students in integrated classrooms are less likely to drop out, more likely to enroll in college, and on average have higher test scores). ↑
Alana Semuels, The City that Believed in Desegregation, Atlantic (Mar. 27, 2015) https://www.theatlantic.com/business/archive/2015/03/the-city-that-believed-in-desegregation/388532/ [https://perma.cc/XU4N-DJ5V]; see also John Eligon, Busing Worked in Louisville. So Why Are Its Schools Becoming More Segregated?, N.Y. Times (July 28, 2019), https://www.nytimes.com/2019/07/28/us/busing-louisville-student-segregation.html [https://perma.cc/LGN7-8HE2] (noting that a Louisville school district is one of the nation’s most racially integrated). ↑
John Brittain, Larkin Willis & Peter W. Cookson Jr., Sharing the Wealth: How Regional Finance and Desegregation Plans Can Enhance Educational Equity, (2019), https://learningpolicyinstitute.org/sites/default/files/product-files/Sharing_The_Wealth_REPORT.pdf [https://perma.cc/86NL-6LVJ]. ↑
Id. ↑
Ryan, supra note 95, at 112–14. ↑
See, e.g., id. at 112. ↑
Id. at 113 (describing a stump speech by President Reagan against busing and comprehensive integration in schools where the “crowd greeted these statements with silence” and the local paper called integration the district’s “proudest achievement”). ↑

What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the individual punished repeatedly for hopping subway turnstiles. As convictions accumulate, sentences rise—to weeks and ultimately months in jail. At some point, criminality comes to signal something other than the need for punishment. It signals the presence of need. Perhaps, the recidivist was compelled by economic or social circumstances. Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one. No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences. My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists. But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution. My goals are at once narrow and broad. I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police. I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally. I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings. I endorse “harm reduction,” the governance philosophy that grounds those reforms. And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

Introduction

Speaking on the subject of prison-based rehabilitation, the influential sociologist, Robert Martinson, famously proclaimed that “nothing works.”¹1.Robert Martinson, What Works?—Questions and Answers About Prison Reform, Nat’l Affs., Spring 1974, at 22, 48.Show More Martinson would eventually take a rosier view.²2.Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 Hofstra L. Rev. 243, 244 (1979).Show More But the slogan took on a life of its own. Over the past half century, the mantra that “nothing works” has served as something of an indictment of the entire enterprise of rehabilitation and most other innovative attempts to reshape the criminal-legal system.³3.Franklin E. Zimring, The Great American Crime Decline 28, 192–93 (2007) (“Dr. Martinson’s message, ‘Nothing Works,’ became not simply a description of the impacts of correctional programming but a default characterization of most governmental efforts to cope with the crime problem.”).Show More

I am not so sure that Martinson was wrong, however. Or, rather, he might have been right in a wholly unappreciated way. Consider the proclamation that nothing works. My claim is not that no reform works, but that there is a particular form of negative reform—simply put, doing nothing—that might work surprisingly well. At least in some contexts, a viable first step forward could be for the criminal-legal system to just stop—to stand down, to do nothing, to let go. And, controversially, doing nothing could work best for the very offenders our criminal-legal system currently hits hardest—longtime recidivists.

My claim, here, is contingent and almost wholly unproven. I do not mean to announce authoritatively: Doing nothing works! To the contrary, I merely pose the question of whether doing nothing could work—and when, why, and for whom.⁴4.Infra Parts III–IV.Show More More to the point, I provide moral and prudential reasons to doubt our prevailing premises about the “recidivist premium,”⁵5.Infra Part III; see, e.g., George P. Fletcher, The Recidivist Premium, 1 Crim. Just. Ethics 54, 55 (1982) (using the term “recidivist premium” to describe the sentencing enhancement for repeat offenders); see also Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in the Age of Broken Windows 159–62 (2019) (using the term “additive imperative” for the same concept).Show More and I offer ideas to test my hypothesis naturally.⁶6.Infra Part IV.Show More Concretely, I propose crime licenses—prescriptions for longtime offenders to engage in conduct otherwise criminally proscribed.⁷7.Infra Part IV.Show More But I limit my analysis and proposal to one set of crimes only—low-level, quality-of-life offenses, including recreational drug possession and use, panhandling, vagrancy, subway turnstile hopping, unlicensed vending, and prostitution.⁸8.Infra Part I.Show More In sum, my novel contribution is the counterintuitive claim that we could all be made better by immunizing some recidivists against arrest, prosecution, and punishment—and, perhaps more surprisingly, that the circumstances under which crime licenses are likeliest to work are somewhat obvious and predictable.⁹9.To my knowledge, only one scholar has argued for anything even analogous to the immediate proposal. In a forthcoming article, Christopher Lewis pushes for a recidivist sentencing discount, based on prevailing inequities and criminogenic social conditions. Christopher Lewis, The Paradox of Recidivism, 70 Emory L.J. (forthcoming 2021). To a degree, Lewis’s article and my own are compatible, and we have traded drafts. In the places where our ideas overlap, I cite him accordingly. Our reasoning is often different. And I go substantially further than him in advocating for categorical immunity to commit certain crimes. More importantly, we adopt different conceptual frames for our respective claims, though we both briefly draw on the reasoning of the “capabilities approach.” Infra notes 254–66 and accompanying text. But I build my reforms principally around theories of harm reduction and radical pragmatism, upon which Lewis does not rely. Finally, my analysis is limited to the special context of quality-of-life enforcement and adjudication, whereas Lewis is concerned principally with felony convictions and traditional sentences of imprisonment.Show More

* * *

Quality-of-life offenses typically involve malum prohibitum (or, at most, relatively trivial and largely victimless malum in se) conduct over which reasonable minds disagree already.¹⁰10.See Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 279–80 & n.318 (2012) (discussing disagreement over the blameworthiness of malum prohibitum conduct); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1666–67 n.44 (2010) (discussing offenses that “lack inherent blameworthiness” and noting that “a community is more likely to demand criminal condemnation for a given killer than a given graffiti artist, prostitute, drug possessor, turnstile hopper, or public urinator”); infra note 352 and accompanying text (discussing shifting conceptions of disorder).Show More Plausible policy perspectives range from legalization or decriminalization to heavy-handed enforcement. And, at least with respect to marijuana policy, current approaches span the spectrum—not only across jurisdictions but also sometimes within a given jurisdiction longitudinally. New York City, for instance, has observed such a shift. During the Giuliani and first Bloomberg mayoral administrations, authorities concentrated enforcement energies on the localized practice of full-custodial arrest for marijuana offenses.¹¹11.Infra notes 56–60 and accompanying text (discussing “broken windows” policing).Show More But, over the past few years, the city has almost abandoned its reliance on arrest (at least for simple possession of marijuana).¹²12.Infra note 136 and accompanying text.Show More And, of course, as of this writing, several jurisdictions have legalized recreational marijuana altogether.¹³13.See, e.g., infra notes 309–14 and accompanying text (discussing marijuana reform).Show More With respect to a borderline offense like marijuana possession, a licensing regime could serve as a pilot program, enabling a jurisdiction to test run decriminalization, without adopting the policy categorically.

It might seem strange to decriminalize criminal conduct for a finite population only—particularly for only the most noncompliant offenders. But it is not so farfetched. There are even existing models to which we could look for guidance. At the beginning of the twentieth century, American municipalities established addiction-maintenance clinics, where doctors were authorized to prescribe opiates to recreational drug users in safe settings.¹⁴14.Josh Bowers & Daniel Abrahamson, Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin, 80 Ohio St. L.J. 787, 794–95 (2019) (discussing historical addiction-maintenance programs).Show More Indeed, the medical community considered this palliative approach to be the standard of care—at least once other interventions failed. The operating philosophy was harm reduction, not law enforcement.¹⁵15.Infra notes 210–12 and accompanying text (describing harm reduction).Show More And, though the existing data are limited, it seemed to have worked well until it was abandoned in favor of a criminal war on drugs.¹⁶16.Infra notes 315–17 and accompanying text.Show More

More to the point, internationally, a number of cities and countries have updated the addiction-maintenance model. In Vancouver, Canada, and throughout Switzerland and Portugal, government-run clinics provide patients with free, uncontaminated, and comparatively safe narcotics for use in sterile, medically supervised facilities.¹⁷17.Bowers & Abrahamson, supra note 14, at 797–804.Show More The data-keeping is robust, and the results are remarkable.¹⁸18.Id.Show More Communities have enjoyed an uptick in quality of life in neighborhoods where illegal drug markets formerly flourished.¹⁹19.Id. at 804.Show More Overdose deaths have dropped dramatically.²⁰20.Id. at 801.Show More And drug-dependent individuals have more readily managed to remain socially integrated—less affected by the most destructive aspects of not only drug abuse but also the criminal-legal war against it.²¹21.Id. at 805.Show More

There is nothing obviously exceptional about drug policy. Just as the contemporary American drug war is counterproductive and even criminogenic, so too other forms of “punitive prohibition” are counterproductive and criminogenic.²²22.Infra note 141 and accompanying text (discussing criminogenic consequences of quality-of-life policing and adjudication). See Craig Reinarman & Harry G. Levine, Punitive Prohibition in America, in Crack in America: Demon Drugs and Social Justice 321–33 (Craig Reinarman & Harry G. Levine eds., 1997).Show More Isolation and othering produce antisocial behavior. And blame and shame produce isolation and othering. A prescription model, by contrast, holds promise as a problem-solving approach—as problem-solving crime, if you will. The starting point is an understanding that “what we did before simply was not working.”²³23.James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 106 (2001).Show More The means are grassroots political action, self-help, and a tolerance for offending. And the primary end is harm reduction.

* * *

Normative and instrumental concerns remain, of course. On the one side, there are the conventional law-and-order objections. Why give crime licenses to the very offenders who violate law most frequently—to the purportedly unmanageable recidivists who are (perceived to be) most deserving of punishment? Would crime licenses, in turn, engender resentment and resistance from law-abiding laypeople? Could crime licenses cause popular confusion about the legality of conduct? And what of moral hazard?²⁴24.Infra notes 391–405 and accompanying text (responding to objections).Show More Take the last objection, for instance. Arguably, habitual offenders would have strong and perverse incentives to commit more crimes to earn crime licenses. But there are ways, as I detail, for regulators to design a particular crime license such that recipients remain unaware of it.²⁵25.Infra notes 412–18 and accompanying text (discussing “acoustic separation” and crime licenses).Show More In any event, the concern could be addressed adequately simply by setting licensing prices high enough. At the right price, no rational offenders would calculate the benefit of a crime license to outweigh the punishment costs—the cumulative lifetime penalty—that must be prepaid to receive it.²⁶26.Infra notes 393–94 and accompanying text (discussing price setting).Show More

Consider, for instance, the seed of this project—a case from my former career as a public defender in Bronx County, New York. I had a client who had amassed well over thirty prior misdemeanor convictions for subway turnstile hopping (or “theft of services”). Theft of services is an A-level misdemeanor, punishable by up to a year in jail.²⁷27.N.Y. Penal Law § 165.15(3) (McKinney 2018).Show More However, offenders rarely face much, if any, time. Initial offenses tend to result in noncriminal dispositions. Subsequent offenses lead to misdemeanor convictions and days or, at most, weeks in jail. The longest sentences—months behind bars—are reserved for those few offenders, like my client, who do not (or cannot) stop. This is the “recidivist premium” in action. Escalation is the rule.

For my client, this translated to a plea offer of nine months. After pushing unsuccessfully for less, I quipped in frustration: “We would all be better off if the city would just give my client a lifetime transit pass.” It was a joke. But it was also true. My client and his community would have been better off, and the system and society would have been better off. Deterrence had not worked. Incapacitation had cost the city tens of thousands of dollars and had imposed serious social consequences. And, unsurprisingly, the city’s infamously harsh jails had failed to do anything to rehabilitate him.²⁸28.See, e.g., Torture Island’s Final Sentence: Rikers, One of America’s Most Notorious Jails, is to Close, Economist (Oct. 26, 2019), https://www.economist.com/united-states/2019/10/26/rikers-one-of-americas-most-notorious-jails-is-to-close [https://perma.cc/PAR8-S84X] (describing conditions at New York City’s “most notorious jail”). See generally Daniel S. Nagin, Francis T. Cullen & Cheryl Lero Jonson, Imprisonment & Reoffending, 38 Crime & Just. 115, 116, 121 (2009) (discussing criminogenic effects of incarceration); Don Stemen, The Prison Paradox: More Incarceration Will Not Make Us Safer, Vera Inst. Just. 2–3 (July 2017) (same); Benjamin Ewing, Prior Convictions as Moral Opportunities, 46 Am. J. Crim. L. 283, 330 (2019) (same).Show More More to the point, in order to rehabilitate my client, the system would have had to reckon with what was wrong and how to fix it. The retributive assumptions of the recidivist premium dictate that my client was a willing scofflaw or worse—that he was on notice of what the law forbade, and still he persisted.²⁹29.Infra notes 124–34 and accompanying text (discussing rationales for the recidivist premium).Show More He needed to be taught a lesson, and it was his responsibility to learn from it. But recidivism does not inexorably screen for blameworthiness. At a certain point, it screens for the precise opposite.³⁰30.Infra notes 228–31 and accompanying text (discussing recidivism as a screen for socioeconomic deprivation or internal compulsion or irrationality).Show More

Why had legal coercion—in the form of increasingly punitive carceral sticks—failed to cow my client? The least plausible explanation is human agency and corresponding poor choice—that my client elected freely to break the rules. Likelier, he suffered from a pressing constraint on his will—some form of internal compulsion or situational duress. Why was his “crime-resistance capital” so low?³¹31.Louis Michael Seidman, Entrapment and the “Free Market” for Crime, in Criminal Law Conversations 493, 499–500 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009); see also infra notes 222–27 and accompanying text (discussing luck, freewill, and the “American Dream”).Show More Why did he shell out so much (repeated and ever-longer stints in jail) for seemingly so little (free transit rides)? Simply put, at a certain point (reached long before he became my client), his crimes stopped paying. And that is precisely the point. Logically, his particular course of recidivism screened optimally for a crime license.³²32.See infra notes 374–90 and accompanying text (discussing optimal screening).Show More It demonstrated the ineffectiveness and injustice of his personal cycle of crime, capture, and escalating punishment.

To be sure, an optimal screen is not a perfect screen. Even a well-designed crime license would leave room for some games-playing at the margins. But “Blackstone’s Ratio” teaches us that a just system abhors inappropriate penalties more than unwarranted windfalls.³³33.Infra notes 407–10 and accompanying text (discussing “Blackstone’s Ratio” and unwarranted windfalls).Show More And this concern with inappropriate punishment is of particular relevance in the context of quality-of-life policing. Much of the work of many modern police departments consists of state attempts to use stops and arrests for low-level offenses to maintain public order and exert social control over predominately poor and minority populations.³⁴34.See, e.g., Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117, 1119, 1122 (2008) (observing that most criminal court cases are petty nonfelony cases); Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System 39, 59 (2019) (noting that nationally more people are arrested for marijuana offenses than all violent crimes combined); Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 40–42 tbl.2.1 (1979) (describing study of Connecticut criminal court in which 58% of cases were “crimes against public morality” or “crimes against public order”).Show More These groups disproportionately shoulder the significant costs and very real dangers of inequitable and coercive policies and practices.³⁵35.Infra notes 99–109 and accompanying text; Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017) (discussing disparate impact and “downstream consequences” of quality-of-life policing, prosecution, and punishment).Show More It is no coincidence that so many infamous police killings started with efforts to combat perceived low-level disorder and rule-breaking. Officers suspected Eric Garner of selling loose cigarettes without a tax stamp and George Floyd of passing a counterfeit bill.³⁶36.See Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times (June 13, 2015), https://www.nytimes.com/2015/06/14/‌nyregion/eric-garner-police-chokehold-staten-island.html [https://perma.cc/6A7S-TRT2] (“This was not a chance meeting on the street. It was a product of a police strategy to crack down on the sort of disorder that, to the police, Mr. Garner represented.”); see also Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129, 210–11 (2017) (discussing the death of Eric Garner); Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting) (“They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”).Show More These are the stakes of petty-crime enforcement.

But these tragic incidents (and our current cultural moment) raise the contrary objection that my crime-license proposal would be piddling—too little, too late. I am sensitive to the worry. Today, we find ourselves in a moment of movement, with growing consciousness and even modest enthusiasm for radical ideas, like “defunding police” and “abolishing prisons.”³⁷37.See Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 7–8 (2019); Paul Butler, Abolition Is Better Than Reform, and It Is Not Dangerous (Aug. 4, 2020) (unpublished manuscript) (on file with author); Karakatsanis, supra note 34, at 83 (endorsing “abolition of the police, closing jails and prisons, reparations, new paradigms of restorative justice, and broader economic divestment from punishment”).Show More So, why am I shying away from big steps now? I am on the record, almost a decade ago, calling for the wholesale decriminalization of malum prohibitum conduct.³⁸38.Bowers & Robinson, supra note 10, at 279–80 n.318; see also Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055, 1058 (2015) (overviewing rationales for the decriminalization of misdemeanors).Show More Why not argue for at least as much here? Why settle for the incremental approach? The answer is that it is easy enough to get on a soapbox and demand sweeping structural reform when there is little hope of it happening. But, especially in times like these, when the doors of opportunity pry open, the need grows to lay the appropriate groundwork—to determine what works and what does not and to push to persuade the unpersuaded-but-persuadable.³⁹39.See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1385–86 (1988) (“[U]ntil whites recognize the hegemonic function of racism and turn their efforts toward neutralizing it, African-American people must develop pragmatic political strategies. . . . It is a struggle to create a new status quo through the ideological and political tools that are available . . . maneuvering within and expanding the dominant ideology to embrace the potential for change.”); see also Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 307 (1987) (arguing that structural change is sometimes best achieved incrementally and that “[t]he CLS critique of piecemeal reform is familiar, imperialistic and wrong”).Show More Pragmatism counsels a measure of caution.⁴⁰40.Infra notes 157–64 and accompanying text (discussing classical and radical pragmatism); see also Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 284 (1998) (discussing experimentalism as a means for the “incremental realization” of social goals).Show More Social movements depend upon political will, and political will is shaped by proof of success.⁴¹41.Infra notes 432–40 and accompanying text (discussing pragmatic efforts to build political support).Show More

But there is likewise a danger of missing the moment. So, small steps must be taken deliberately, with an appropriate focus on radical change. Roberto Mangabeira Unger sketched an attractive frame for this approach to social action, which he labeled “radical pragmatism”—a style of “political experimentalism” or “existential bootstrapping” that consists of “using the smaller variations that are at hand to produce the bigger variations that do not yet exist.”⁴²42.Roberto Mangabeira Unger, The Self Awakened: Pragmatism Unbound 8, 43 (2007).Show More According to Unger, “it is about changing the context of established arrangement and assumed belief, little by little and step by step, as we go about our business.”⁴³43.Id. at 43; see also Roberto Mangabeira Unger, The Critical Legal Studies Movement 110 (1986) (discussing “opportunities for experimental revisions of social life in the direction of the ideals we defend,” pursued “piecemeal rather than only all at once”).Show More He distinguished this form of incrementalism from the incrementalism characteristic of classical American pragmatism—a “shrunken pragmatism” that, per Unger, too often leads only to “standing and waiting” and “singing in our chains.”⁴⁴44.Unger, supra note 42, at 1, 6.Show More Instead, the aim is to keep the radical objective always in sight while relying upon “piecemeal, experimental revision” to “shorten the distance” to structural reformation and to define more sharply the appropriate contours of the radical agenda and reformation.⁴⁵45.Id. at 7 (“[O]ur societies and cultures may be so arranged as to facilitate and to organize their own piecemeal, experimental revision. We then shorten the distance between routine moves within a framework and exceptional moves about the framework.”).Show More In a nutshell:

Society and culture may be so arranged as either to extend or to narrow the distance . . . . Our interest is to narrow this distance . . . . [T]he primary mode of transformative politics is radical reform, the piecemeal transformation of the structure that may nevertheless become radical in outcome if cumulatively pursued under a certain conception . . . . [W]hat this goal entails is a high-energy democracy—a democracy that raises the temperature and hastens the pace of politics and that multiplies occasions for the creation of counter models of the future in different localities and sectors.⁴⁶46.RSA, Freedom, Equality, and a Future Political Economy, YouTube (Dec. 11, 2013), https://www.youtube.com/watch?v=_CBW3aFvxVs&ab [https://perma.cc/2DBE-ZV3G] (emphasis added) (beginning at 4:36 and continuing at 5:02, 8:37, and 16:37).Show More

Today, we have just such a “high-energy democracy,” but we do not quite know what to do with it.⁴⁷47.Id. at 16:37.Show More We do not know precisely what we want. There is no generally accepted understanding of what it means to, say, defund the police or abolish prisons.⁴⁸48.See Butler, supra note 37, at 20 (“[A]bolition remains under-theorized, including on the important question of precisely what it is that its advocates want to abolish . . . . And what will the police do, if ‘locking people up’ is no longer part of their job description?”); Roberts, supra note 37, at 6 (“It is hard to pin down what prison abolition means.”).Show More Radical activists and sympathetic academics offer a range of prescriptions, often rooted in notions of harm reduction or adjacent theories.⁴⁹49.See, e.g., Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1156 (2015) (arguing in favor of “gradual decarceration”); Butler, supra note 37, at 20–21 (distinguishing between different conceptions of abolition and different types of abolitionists, including “justice abolitionists” and “instrumental abolitionists”); Roberts, supra note 37, at 7–8 (noting that abolition is premised upon the notion that “we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems”); Allegra McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1615 (2019) (“Justice for abolitionists is an integrated endeavor to prevent harm, intervene in harm, obtain reparations, and transform the conditions in which we live.”).Show More Short of categorically closing down institutions, dismantling police forces, or entirely stripping department budgets, these movements need test cases to determine, in the offing, what is practical and appropriate. This is hard work. But, consistent with the virtues of federalism, we may experiment with the “creation of counter models of the future in different localities and sectors” in efforts to discern the shape of ideas in practice.⁵⁰50.RSA, supra note 46, at 16:48; see also Patrick Sharkey, Why Do We Need the Police?, Wash. Post (June 12, 2020), https://www.washingtonpost.com/outlook/2020/06/12/defund-police-violent-crime/ [https://perma.cc/6UMK-NLBH] (proposing “a demonstration project that is both more cautious and more radical than the call to defund the police,” and demanding “rigorous testing” of the pilot program); infra notes 419–27 and accompanying text (discussing radical experimentation, localism, and the virtues of federalism).Show More

In this vein, my proposal for crime licenses is akin to the now-defunct Capitol Hill Autonomous Zone (“CHAZ”) in Seattle, Washington. The CHAZ was a grassroots experiment in eliminating police from a particular geographic area; my proposal would be an experiment in eliminating enforcement against a particular population. At the time I initially drafted this Article, the future of the CHAZ remained unclear. I predicted that the collective would likely collapse under its own anarchic weight.⁵¹51.And it arguably did. After a series of shootings, the mayor issued a dispersal order and the police moved in. Brendan Kiley, Ryan Blethen, Sydney Brownstone & Daniel Beekman, Seattle Police Clear CHOP Protest Zone, Seattle Times (July 1, 2020), https://www.seattletimes.com/seattle-news/seattle-police-clearing-chop-protest-zone/ [https://perma.cc/5P8P-UW4R]. We can debate whether law enforcement intervention constitutes a collapse or dismantlement. In any event, the CHAZ had its problems and is now no more.Show More But, even so, I noted that we could learn from the effort. The alternative, I suggested, was that the CHAZ might thrive and reveal a viable, unorthodox social order. Obviously, that did not happen. But, even so, I imagine that some former participants still perceive the experiment as other than a total failure—that they experienced moments of beauty where others saw only disorder and violence. This is the nature (and virtue) of experimentation. We take risks and then track and learn from substantive and tactical missteps and successes. We anticipate what we can; we prepare for pitfalls; we wish for the best; and we debate, democratically, about our means, ends, and results.⁵²52.Infra notes 196–204 and accompanying text (discussing radical pragmatism).Show More

This is not to say that anything goes—just that the radical pragmatist need only formulate a hypothesis, develop plausible means to test it, and establish criteria to evaluate progress toward the preestablished revolutionary goal. For this project, the hypothesis is that sometimes the best first step to promote a healthy social order is to stop ordering people around. The means are to transition resources and authority (somewhat) from law enforcement to social services. And the goal is to replace (to the extent possible) entrenched structures of hierarchy with a commitment to individual and collective wellbeing.⁵³53.Sharkey, supra note 50 (“The idea that residents and local organizations can play a central role in creating safe and strong communities is not new, and it is not particularly controversial. And yet we have never made the same commitment to these groups that we make to law enforcement . . . . We have models available, but we’ve made commitments only to the police and the prison system.”).Show More It would be a mistake, of course, to stop with crime licenses, autonomous zones, or anything else. All such proposals are, at best, fragments of a mosaic—piecemeal reforms designed to close the gap between here and there. Thus, the Movement for Black Lives has not only deemphasized policing but also highlighted the significance of social work.⁵⁴54.Phillipe Copeland, Let’s Get Free: Social Work and the Movement for Black Lives, 5 J. Forensic Soc. Work 3 (2016).Show More A holistic methodology demands negation and addition—a pull back from criminal legalism and a commitment to alternative harm-reduction measures.⁵⁵55.Infra Sections III.C–D.Show More On this reading, a prescription model would constitute only a part of a broader social movement, consisting of much more than tolerance for rule breaking. In fact, a holistic reform agenda would lay bare an ugly truth about the prevailing paradigm’s relationship to the very idea of tolerance: it is punitive prohibition that is the too-tolerant regime—too tolerant of fractured lives and fractured communities, of food and housing insecurity, of employment and education inequities, of economic and racial subordination. Ours is a system that tolerates all but tolerance for those who offend the status quo.

* * *

This Article proceeds in four parts. In Part I, I examine “broken windows” policing theory and its entrenched assumptions about supposedly appropriate or preordained meanings of disorder and quality of life. I discuss the manner by which legal officials, in fact, use crime-making and discretion to settle upon and coercively impose subjective conceptions of these contested concepts. I then trace New York City’s recent history with broken windows policing. I look to the city’s experience because it is a paradigmatic example of quality-of-life policing in practice and, more to the point, because data are there. In Part II, I situate quality-of-life policing within the dominant landscape of crime-control governance. And I explain what it means to be a recidivist within that archetype. In Part III, I sketch alternative modes of social organization, oriented principally around harm reduction and related ideas, like forgiveness, human capabilities, autonomy, public health, social solidarity, and human flourishing. I survey positive examples of radical-pragmatic experiments—particularly international and domestic drug reforms. And I compare the results with conventional criminal-legal approaches. In Part IV, I examine the parameters of a defensible crime license. And I outline three potentially effective designs. I then return to New York City to discuss a grassroots radical-pragmatic experiment already underway. Finally, in the conclusion, I visit the question of whether the upheavals of our current historical moment have made radical-pragmatic structural reform more or less viable.

* F.D.G. Ribble Professor of Law, University of Virginia School of Law. Many thanks to Rebecca Rubin for her exceptional research assistance. Thanks also to Dan Abrahamson, Charles Barzun, Naomi Cahn, Anne Coughlin, Josh Fischman, Kim Forde-Mazrui, Thomas Frampton, Mike Gilbert, Andrew Hayashi, Rich Hynes, Issa Kohler-Hausmann, Adi Leibovitch, Christopher Lewis, Gabe Mendlow, Fred Schauer, Micah Schwartzman, Jeff Sovern, and Ekow Yankah. I received constructive comments and questions at the University of Virginia Faculty Workshop Series, the Law & Society Annual Meeting, the University of Virginia Summer Workshop Series, and the St. John’s University Faculty Workshop Series. ↑
Robert Martinson, What Works?—Questions and Answers About Prison Reform, Nat’l Affs., Spring 1974, at 22, 48. ↑
Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 Hofstra L. Rev. 243, 244 (1979). ↑
Franklin E. Zimring, The Great American Crime Decline 28, 192–93 (2007) (“Dr. Martinson’s message, ‘Nothing Works,’ became not simply a description of the impacts of correctional programming but a default characterization of most governmental efforts to cope with the crime problem.”). ↑
Infra Parts III–IV. ↑
Infra Part III; see, e.g., George P. Fletcher, The Recidivist Premium, 1 Crim. Just. Ethics 54, 55 (1982) (using the term “recidivist premium” to describe the sentencing enhancement for repeat offenders); see also Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in the Age of Broken Windows 159–62 (2019) (using the term “additive imperative” for the same concept). ↑
Infra Part IV. ↑
Infra Part IV. ↑
Infra Part I. ↑
To my knowledge, only one scholar has argued for anything even analogous to the immediate proposal. In a forthcoming article, Christopher Lewis pushes for a recidivist sentencing discount, based on prevailing inequities and criminogenic social conditions. Christopher Lewis, The Paradox of Recidivism, 70 Emory L.J. (forthcoming 2021). To a degree, Lewis’s article and my own are compatible, and we have traded drafts. In the places where our ideas overlap, I cite him accordingly. Our reasoning is often different. And I go substantially further than him in advocating for categorical immunity to commit certain crimes. More importantly, we adopt different conceptual frames for our respective claims, though we both briefly draw on the reasoning of the “capabilities approach.” Infra notes 254–66 and accompanying text. But I build my reforms principally around theories of harm reduction and radical pragmatism, upon which Lewis does not rely. Finally, my analysis is limited to the special context of quality-of-life enforcement and adjudication, whereas Lewis is concerned principally with felony convictions and traditional sentences of imprisonment. ↑
See Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 279–80 & n.318 (2012) (discussing disagreement over the blameworthiness of malum prohibitum conduct); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1666–67 n.44 (2010) (discussing offenses that “lack inherent blameworthiness” and noting that “a community is more likely to demand criminal condemnation for a given killer than a given graffiti artist, prostitute, drug possessor, turnstile hopper, or public urinator”); infra note 352 and accompanying text (discussing shifting conceptions of disorder). ↑
Infra notes 56–60 and accompanying text (discussing “broken windows” policing). ↑
Infra note 136 and accompanying text. ↑
See, e.g., infra notes 309–14 and accompanying text (discussing marijuana reform). ↑
Josh Bowers & Daniel Abrahamson, Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin, 80 Ohio St. L.J. 787, 794–95 (2019) (discussing historical addiction-maintenance programs). ↑
Infra notes 210–12 and accompanying text (describing harm reduction). ↑
Infra notes 315–17 and accompanying text. ↑
Bowers & Abrahamson, supra note 14, at 797–804. ↑
Id. ↑
Id. at 804. ↑
Id. at 801. ↑
Id. at 805. ↑
Infra note 141 and accompanying text (discussing criminogenic consequences of quality-of-life policing and adjudication). See Craig Reinarman & Harry G. Levine, Punitive Prohibition in America, in Crack in America: Demon Drugs and Social Justice 321–33 (Craig Reinarman & Harry G. Levine eds., 1997). ↑
James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 106 (2001). ↑
Infra notes 391–405 and accompanying text (responding to objections). ↑
Infra notes 412–18 and accompanying text (discussing “acoustic separation” and crime licenses). ↑
Infra notes 393–94 and accompanying text (discussing price setting). ↑
N.Y. Penal Law § 165.15(3) (McKinney 2018). ↑
See, e.g., Torture Island’s Final Sentence: Rikers, One of America’s Most Notorious Jails, is to Close, Economist (Oct. 26, 2019), https://www.economist.com/united-states/2019/10/26/rikers-one-of-americas-most-notorious-jails-is-to-close [https://perma.cc/PAR8-S84X] (describing conditions at New York City’s “most notorious jail”). See generally Daniel S. Nagin, Francis T. Cullen & Cheryl Lero Jonson, Imprisonment & Reoffending, 38 Crime & Just. 115, 116, 121 (2009) (discussing criminogenic effects of incarceration); Don Stemen, The Prison Paradox: More Incarceration Will Not Make Us Safer, Vera Inst. Just. 2–3 (July 2017) (same); Benjamin Ewing, Prior Convictions as Moral Opportunities, 46 Am. J. Crim. L. 283, 330 (2019) (same). ↑
Infra notes 124–34 and accompanying text (discussing rationales for the recidivist premium). ↑
Infra notes 228–31 and accompanying text (discussing recidivism as a screen for socioeconomic deprivation or internal compulsion or irrationality). ↑
Louis Michael Seidman, Entrapment and the “Free Market” for Crime, in Criminal Law Conversations 493, 499–500 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009); see also infra notes 222–27 and accompanying text (discussing luck, freewill, and the “American Dream”). ↑
See infra notes 374–90 and accompanying text (discussing optimal screening). ↑
Infra notes 407–10 and accompanying text (discussing “Blackstone’s Ratio” and unwarranted windfalls). ↑
See, e.g., Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117, 1119, 1122 (2008) (observing that most criminal court cases are petty nonfelony cases); Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System 39, 59 (2019) (noting that nationally more people are arrested for marijuana offenses than all violent crimes combined); Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 40–42 tbl.2.1 (1979) (describing study of Connecticut criminal court in which 58% of cases were “crimes against public morality” or “crimes against public order”). ↑
Infra notes 99–109 and accompanying text; Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017) (discussing disparate impact and “downstream consequences” of quality-of-life policing, prosecution, and punishment). ↑
See Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times (June 13, 2015), https://www.nytimes.com/2015/06/14/‌nyregion/eric-garner-police-chokehold-staten-island.html [https://perma.cc/6A7S-TRT2] (“This was not a chance meeting on the street. It was a product of a police strategy to crack down on the sort of disorder that, to the police, Mr. Garner represented.”); see also Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129, 210–11 (2017) (discussing the death of Eric Garner); Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting) (“They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”). ↑
See Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 7–8 (2019); Paul Butler, Abolition Is Better Than Reform, and It Is Not Dangerous (Aug. 4, 2020) (unpublished manuscript) (on file with author); Karakatsanis, supra note 34, at 83 (endorsing “abolition of the police, closing jails and prisons, reparations, new paradigms of restorative justice, and broader economic divestment from punishment”). ↑
Bowers & Robinson, supra note 10, at 279–80 n.318; see also Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055, 1058 (2015) (overviewing rationales for the decriminalization of misdemeanors). ↑
See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1385–86 (1988) (“[U]ntil whites recognize the hegemonic function of racism and turn their efforts toward neutralizing it, African-American people must develop pragmatic political strategies. . . . It is a struggle to create a new status quo through the ideological and political tools that are available . . . maneuvering within and expanding the dominant ideology to embrace the potential for change.”); see also Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 307 (1987) (arguing that structural change is sometimes best achieved incrementally and that “[t]he CLS critique of piecemeal reform is familiar, imperialistic and wrong”). ↑
Infra notes 157–64 and accompanying text (discussing classical and radical pragmatism); see also Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 284 (1998) (discussing experimentalism as a means for the “incremental realization” of social goals). ↑
Infra notes 432–40 and accompanying text (discussing pragmatic efforts to build political support). ↑
Roberto Mangabeira Unger, The Self Awakened: Pragmatism Unbound 8, 43 (2007). ↑
Id. at 43; see also Roberto Mangabeira Unger, The Critical Legal Studies Movement 110 (1986) (discussing “opportunities for experimental revisions of social life in the direction of the ideals we defend,” pursued “piecemeal rather than only all at once”). ↑
Unger, supra note 42, at 1, 6. ↑
Id. at 7 (“[O]ur societies and cultures may be so arranged as to facilitate and to organize their own piecemeal, experimental revision. We then shorten the distance between routine moves within a framework and exceptional moves about the framework.”). ↑
RSA, Freedom, Equality, and a Future Political Economy, YouTube (Dec. 11, 2013), https://www.youtube.com/watch?v=_CBW3aFvxVs&ab [https://perma.cc/2DBE-ZV3G] (emphasis added) (beginning at 4:36 and continuing at 5:02, 8:37, and 16:37). ↑
Id. at 16:37. ↑
See Butler, supra note 37, at 20 (“[A]bolition remains under-theorized, including on the important question of precisely what it is that its advocates want to abolish . . . . And what will the police do, if ‘locking people up’ is no longer part of their job description?”); Roberts, supra note 37, at 6 (“It is hard to pin down what prison abolition means.”). ↑
See, e.g., Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1156 (2015) (arguing in favor of “gradual decarceration”); Butler, supra note 37, at 20–21 (distinguishing between different conceptions of abolition and different types of abolitionists, including “justice abolitionists” and “instrumental abolitionists”); Roberts, supra note 37, at 7–8 (noting that abolition is premised upon the notion that “we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems”); Allegra McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1615 (2019) (“Justice for abolitionists is an integrated endeavor to prevent harm, intervene in harm, obtain reparations, and transform the conditions in which we live.”). ↑
RSA, supra note 46, at 16:48; see also Patrick Sharkey, Why Do We Need the Police?, Wash. Post (June 12, 2020), https://www.washingtonpost.com/outlook/2020/06/12/defund-police-violent-crime/ [https://perma.cc/6UMK-NLBH] (proposing “a demonstration project that is both more cautious and more radical than the call to defund the police,” and demanding “rigorous testing” of the pilot program); infra notes 419–27 and accompanying text (discussing radical experimentation, localism, and the virtues of federalism). ↑
And it arguably did. After a series of shootings, the mayor issued a dispersal order and the police moved in. Brendan Kiley, Ryan Blethen, Sydney Brownstone & Daniel Beekman, Seattle Police Clear CHOP Protest Zone, Seattle Times (July 1, 2020), https://www.seattletimes.com/seattle-news/seattle-police-clearing-chop-protest-zone/ [https://perma.cc/5P8P-UW4R]. We can debate whether law enforcement intervention constitutes a collapse or dismantlement. In any event, the CHAZ had its problems and is now no more. ↑
Infra notes 196–204 and accompanying text (discussing radical pragmatism). ↑
Sharkey, supra note 50 (“The idea that residents and local organizations can play a central role in creating safe and strong communities is not new, and it is not particularly controversial. And yet we have never made the same commitment to these groups that we make to law enforcement . . . . We have models available, but we’ve made commitments only to the police and the prison system.”). ↑
Phillipe Copeland, Let’s Get Free: Social Work and the Movement for Black Lives, 5 J. Forensic Soc. Work 3 (2016). ↑
Infra Sections III.C–D. ↑
James Q. Wilson & George L. Kelling, Broken Windows, Atlantic, Mar. 1982, at 29. ↑
Id. at 31; see also Wesley G. Skogan, Disorder and Decline: Crime and the Spiral of Decay in American Neighborhoods 10–11 (1990) (“[W]hatever the link between [disorder and crime] is, it is powerful. . . . [A] neighborhood’s reputation for tolerating disorder invites outside troublemakers. . . . [A] concentration of supposedly ‘victimless’ disorders can soon flood an area with serious, victimizing crime.”). ↑
Wilson & Kelling, supra note 56; John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 215 (1985). ↑
Zimring, supra note 3, at 35. ↑
Skogan, supra note 57, at 9; see also id. at 5 (rejecting “the popular view [that] disorder is not immutable, and that it has reflected ethnic and class cleavages in society”); id. at 52 (rejecting the notion that “conventional definitions of order merely reflect the distribution of white, middle-class views about public deportment”). ↑
Donald Braman, Dan M. Kahan & David A. Hoffman, Some Realism About Punishment Naturalism, 77 U. Chi. L. Rev. 1531, 1557 (2010) (discussing offenses on the “periphery of crime . . . outside of the ‘core’ of wrongdoing”). ↑
Kohler-Hausmann, supra note 5, at 265. ↑
Braman, Kahan & Hoffman, supra note 61, at 1535 (“Punishment Naturalists . . . perceive not conflict but consensus, not cultural heterogeneity but biological uniformity. As they read the evidence . . . ‘human intuitions of justice about core wrongdoing . . . are deep, predictable, and widely shared.’” (quoting Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 Minn. L. Rev. 1829, 1892 (2007))). See generally Paul H. Robinson & John M. Darley, Justice, Liability, and Blame: Community Views and the Criminal Law, at xv (1995) (reporting studies of community intuitions about culpability). ↑
Skogan, supra note 57, at 7 (quoting Harvey Cox, The Secular City: Secularization and Urbanization in Theological Perspective 43 (1966)); see also Richard Sennett, The Uses of Disorder: Personal Identity & City Life, at xvi (1970) (arguing that, as compared with the “self-imposed tyranny” and “safe and secure slavery” of conventional life, “dense, disorderly, overwhelming cities can become the tools to teach men to live with this new freedom”). See generally Jane Jacobs, The Death and Life of Great American Cities 15 (1961) (criticizing as paternalistic the efforts of urban planners to enforce their own notions of order apart from the needs of city dwellers). ↑
Skogan, supra note 57, at 5 (“[U]rban utopians argue that city dwellers have a positive taste for disorder, and that it is an aspect of life worth celebrating.”). ↑
Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (Douglas, J.) (“If some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.” (quoting Anthony G. Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 226 (1967))); see also Tom Waits, Heart of a Saturday Night, on Heart of a Saturday Night (Asylum Records 1974); John Steinbeck, Cannery Row (1945); Nelson Algren, The Texas Stories of Nelson Algren (1995); W.H. Davies, The Autobiography of a Super-Tramp (1908). Significantly, there is an entire popular music genre—punk—that fetishizes the disordered life. The Talking Heads, Don’t Worry About the Government, on Talking Heads: 77 (Sire Records 1977) (sarcastically: “My building has every convenience/It’s gonna make life easy for me/It’s gonna be easy to get things done.”); Iggy Pop, Lust for Life, on Lust for Life (RCA Records 1977) (“Here comes Johnny Yen again/With the liquor and drugs and a flesh machine/He’s gonna do another striptease.”). See generally Michael Azerrad, Our Band Could Be Your Life: Scenes from the American Indie Underground 1981–1991 (2001) (examining hardcore punk movement). ↑
Justice Douglas once recast perceived vagrancy in just such a way: “These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.” Papachristou, 405 U.S. at 164. ↑
Henry David Thoreau, Walden (1854); Donovan Hohn, Everybody Hates Henry, New Republic (Oct. 21, 2015), https://newrepublic.com/article/123162/everybody-hates-henry-david-thoreau [https://perma.cc/ZYR6-G3LQ] (discussing Thoreau’s laundry). ↑
Papachristou, 405 U.S. at 164. ↑
City of Chicago v. Morales, 527 U.S. 41, 115 (1999) (Thomas, J., dissenting). ↑
Amanda Y. Agan, Jennifer L. Doleac & Anna Harvey, Misdemeanor Prosecution 37 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28600, 2021) (finding, contrary to conventional wisdom, that “not prosecuting marginal nonviolent misdemeanor defendants substantially reduces their subsequent criminal justice contact”); Mychal Denzel Smith, Incremental Change Is a Moral Failure: Mere Reform Won’t Fix Policing, Atlantic (Sept. 2020), https://www.theatlantic.com/magazine/archive/2020/09/police-reform-is-not-enough/614176 [https://perma.cc/XR69-RWH5] (rejecting the proposition that “in order to stop the violence of the hood you must impose the violence of the state . . . to protect the people from themselves, to enforce the discipline their culture lacks”). ↑
See Tracey L. Meares & Tom R. Tyler, The First Step Is Figuring out What Police Are for, Atlantic (June 8, 2020), https://www.theatlantic.com/ideas/archive/2020/06/first-step-figuring-out-what-police-are/612793/ [https://perma.cc/5W23-TKEE] (endorsing a “new focus [that] should include state support for activities that may not be called ‘policing,’ but that every citizen of this country deserves”); Smith, supra note 71 (“The city could put more trash cans here, if keeping this neighborhood . . . clean . . . were important.”); infra notes 255–56 and accompanying text (discussing the literature on the “capabilities approach”). ↑
Bowers, supra note 36, at 131 (“The state manages my existence in public spaces. It picks sides.”). ↑
See generally Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991) (providing a positivist understanding of how rules and sanctions compel behavior). ↑
Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 13–14 (2008) (“Not every system of command and control that calls itself a legal system is a legal system. We need to scrutinize it a little—to see how it works—before we bestow . . . the appellation [of] ‘law.’”). ↑
A. John Simmons, Moral Principles and Political Obligations 17 (1979). ↑
Id. at 17–18; see also id. at 23 (“[T]he fact that I have a ‘legal obligation’ or a ‘duty of citizenship’ will be a morally neutral fact; nothing will follow from this fact about any moral constraints on my actions. . . . If I am morally bound to obey the law or to be a good citizen, the ground of this bond will be independent of the legal and political institutions in question . . . .”). ↑
Lewis, supra note 9 (manuscript at 38–39) (“[T]here is no clear consensus on the true nature of wellbeing. And there may be good reasons for governments and government officials to remain neutral between competing conceptions of the good.”). ↑
Cf. infra notes 287–93 and accompanying text (discussing the importance of individualization to evaluate demands of justice, mercy, and “normative guilt and innocence”). ↑
Richard Rorty, Philosophy and the Mirror of Nature 307 (1979). ↑
See, e.g., Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1442 (2016). See generally Duncan Kennedy, Legal Education and the Reproduction of Hierarchy (1983) (arguing that a legal education reproduces existing social hierarchies by inculcating law students into particular political attitudes and by preparing them to participate in the hierarchical role of the lawyer). ↑
The satirical newspaper, The Onion, recently published a piece poking fun at just such a dichotomy. Protestors Criticized for Looting Businesses Without Forming Private Equity Firm First, Onion (May 28, 2020), https://www.theonion.com/protestors-criticized-for-looting-businesses-without-fo-1843735351 [https://perma.cc/6P25-G4LR]. For a more sophisticated evaluation of violent political protests, see generally Avia Pasternak, Political Rioting: A Moral Assessment, 46 Phil. & Pub. Affs. 384 (2019) (arguing that political riots can take permissible forms even in democratic states). ↑
Karakatsanis, supra note 34, at 32 (“[O]ne cannot typically be prosecuted for [racial discrimination or sexual harassment], even though it might cause a lot of harm. The political system has chosen to pursue these other important goals without resort to the criminal system.”); Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing 17 (2001) (“Everyday forms of tax evasion . . . are also disorderly. Insider trading, insurance misrepresentation, police corruption, and police brutality: these are all disorderly. Yet they figure nowhere in the theory of order-maintenance policing.”). ↑
Harcourt, supra note 83, at 210–11 (“The harm principle . . . does not address the relative importance of harms. . . . [W]e inevitably must look beyond the harm principle. . . . We must access larger debates in ethics, law, and politics—debates about power, autonomy, identity, human flourishing, equality, freedom. . . .”). ↑
Skogan, supra note 57, at 5; see also Karakatsanis, supra note 34, at 26 (“[P]olitical power influences what we decide to criminalize. . . . [O]ur criminal laws are not an objective mechanism for increasing overall well-being by efficiently reducing harmful behavior. . . . [T]hey reflect our demons, past and present.”). ↑
Feeley, supra note 34, at 23–25 (“Decisions made under a strict application of rules often lead to outcomes that few find palatable.”); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 519 (2001) (“Broad criminal law . . . means that the law as enforced will differ from the law on the books.”). ↑
William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548, 2563 (2004); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1531 (1981) (discussing prevalence of discretion “when dealing with minor offenses”); Wayne A. Logan, Florence v. Board of Chosen Freeholders: Police Power Takes a More Intrusive Turn, 46 Akron L. Rev. 413, 431 (2013) (“Florence, when combined with other Supreme Court decisions[,] afford[s] executive actors expansive discretionary power in their handling of low-level offenders.”). ↑
Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (Douglas, J.) (observing that, under open-ended vagrancy laws, “poor people, nonconformists, dissenters, [and] idlers . . . may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts”); Kohler-Hausmann, supra note 5, at 260 (“People are no longer arrested for status offenses such as being a vagrant, drunk, prostitute, drug addict, or unemployed. But for some people, the iterative logic of the [contemporary misdemeanor] model has functional similarities to the way vagrancy statutes were enforced in prior eras.”). See generally Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, at 1–4 (2016) (discussing how vagrancy laws “represented an approach to policing, [and] a vision of society”). ↑
Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 932–33 (2006) (“[C]riminal laws do not create binding obligations but rather a menu of options for [law-enforcement] insiders.”); see also Abraham S. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea 3 (1981) (noting that legal officials “choose[] from a mass of overlapping and redundant criminal statutes”). ↑
Stuntz, supra note 86, at 519 (“Because criminal law is broad, prosecutors cannot possibly enforce the law as written: there are too many violators. Broad criminal law thus means that the law as enforced will differ from the law on the books.”); see also Kenneth Culp Davis, Discretionary Justice 87 (1969) (“[L]egislation has long been written in reliance on the expectation that law enforcement officers will correct its excesses through administration.”). ↑
New York Police Department, Police Strategy No. 5: Reclaiming the Public Spaces of New York 4–5 (1994); see also New York City Police Department, Tackling Crime, Disorder, and Fear: A New Policing Model 2 (2015) (defining quality-of-life policing as “enforcing a variety of laws against street drug dealing, public drinking, public marijuana smoking, open-air prostitution, and other minor offenses”); Harcourt, supra note 83, at 47–49; Kohler-Hausmann, supra note 5, at 25. In addition to these offenses, the Inspector General of the New York Police Department has included the following: drug offenses, tobacco and alcohol offenses, offenses involving property damage, trespass, lewdness, disorderly conduct, unlicensed vending, jaywalking, loitering, urinating in public, spitting, resisting arrest, and petty theft, including turnstile hopping. Mark G. Peters & Philip K. Eure, New York City Department of Investigation, Office of the Inspector General for the NYPD, An Analysis of Quality-of-Life Summonses, Quality-of-Life Misdemeanor Arrests, and Felony Crime in New York City, 2010–2015, at 13–14, 81–82 (June 22, 2016). But, as I indicate, the relevant category of quality-of-life offenses consists of just whichever plausible examples of such offenses the department chooses to enforce. ↑
Harcourt, supra note 83, at 48, 252 (describing “an aggressive policy of misdemeanor arrests in the subways,” relying upon a “Bust Bus . . . retrofitted . . . into an arrest-processing center” (quoting William Bratton, Turnaround 155 (1998))). ↑
Alison Mitchell, Giuliani Appoints Bostonian to Run New York’s Police, N.Y. Times, Dec. 3, 1993, at A1, B4. ↑
New York Police Department, Police Strategy No. 5, supra note 91, at 7. ↑
Peters & Eure, supra note 91, at 47–49; Meredith Patten et al., Misdemeanor Just. Project, Trends in Misdemeanor Arrests in New York, 1980 to 2017, at 15 (2018). ↑
Patten et al., supra note 95, at 46. ↑
Id. at 49; William J. Bratton, N.Y. Police Dep’t, Broken Windows and Quality-of-Life Policing in New York City 18 (2015) (noting that, by 2009, “officers were making more than 20,000 arrests per year for criminal trespass”). The city’s trespass policies and practices demand special attention as a particularly noxious form of social control of underprivileged people. Under a policy titled, alternatively, the “Clean Halls Program” or the “Trespass Affidavit Program,” officers would stake out public housing and some predominantly low-income private buildings, relying on often obsolete tenant rosters to round up the “usual suspects” who could not persuasively offer lawful reasons for their presence. See NYCLU Posts Notice of Ligon Settlement, N.Y.C. Liberties Union, https://www.nyclu.org/en/cleanhalls [https://perma.cc/U5NF-H6KR] (last visited Feb. 14, 2021) (describing the Ligon v. City of New York settlement agreement, which changed NYPD policies related to the Trespass Affidavit Program); see also Bowers, supra note 34, at 1124–32 (discussing biases in arrest, charge, and trial that lead police and prosecutors to focus inordinately on the “usual suspects”); Josh Bowers, Response, The Unusual Man in the Usual Place, 157 U. Pa. L. Rev. PENNumbra 260, 262 (2009) (discussing “usual suspects” policing); Bratton, supra note 97, at 18 (“A significant element of quality-of-life policing . . . entailed confronting unauthorized people . . . . The Department increased its presence in the buildings through what is known as vertical patrols, or top-to-bottom walkthroughs of the structures.”). In my experience, I represented dozens of legally innocent defendants arrested pursuant to this policy. Infra notes 172–81 and accompanying text (discussing innocence in petty cases, including trespass). ↑
The figures vary a bit but all fall roughly in this range. Patten et al., supra note 95, at 20 (“In New York City, there were 64,745 misdemeanor arrests in 1980. This number increased to 247,496 in 2010, followed by a decrease to 155,798 in 2017.”); Bratton, supra note 97, at 12 (providing a figure of 292,219); see also Kohler-Hausmann, supra note 5, at 45 fig.1.5 (tracking misdemeanor arrests over twenty-five-year period from 1990–2015, and showing peak in 2010). ↑
See, e.g., Harcourt, supra note 83, at 50, 252 n.3 (“This is not an exercise in police discretion . . . . It was about sweeps.”); Tim Newburn & Trevor Jones, Symbolizing Crime Control: Reflections on Zero Tolerance, 11 Theoretical Criminology 221, 226 (2007) (“Although . . . the main players in the New York policing story distanced themselves from the term Zero Tolerance, it became inextricably associated with the policing approaches developed under [Police Commissioner] Bill Bratton.”). ↑
Bratton, supra note 97, at 3. ↑
To be sure, the NYPD still found ways to be creative, but principally in finding novel means to arrest. Thus, in Betancourt v. Bloomberg, the NYPD innovated by arresting a homeless man using a penal ordinance intended to prohibit people from abandoning property on city streets. 448 F.3d 547, 549 (2d Cir. 2006) (rejecting vagueness challenge to ordinance); see also id. at 559 (Calabresi, J., dissenting) (“The fact that a law against leaving . . . [inter alia] ‘movable property’ in a public place . . . was listed, by the police department, as an ‘enforcement option’ to target seemingly unrelated crimes . . . is evidence of that very unfettered discretion that causes vague texts to give rise to constitutional problems.”). ↑
Id. at 559 (Calabresi, J., dissenting) (“[T]he NYPD issued a catalog of ‘enforcement options’ to effectuate then-Mayor Rudolph Giuliani’s ‘Quality of Life’ initiatives. This type of ‘guidance’ is anything but comforting.”). ↑
Kohler-Hausmann, supra note 5, at 26–27 (quoting Interview by Issa Kohler-Hausmann with William J. Bratton, New York City Police Commissioner (July 21, 2013)); see also Peters & Eure, supra note 91, at 9 n.19 (“Based on interviews with NYPD officials, NYPD does not have a single official definition for what it considers a ‘quality of life offense.’”). ↑
Jeffrey Rosen, Excessive Force, New Republic (Apr. 10, 2000), https://newrepublic.com/article/74124/excessive-force [https://perma.cc/RF8H-F5NS] (“[P]olice stop, frisk, and arrest vast numbers of young black and Hispanic men for minor offenses, in the hope that turnstile jumpers and pot smokers may also be guilty of more serious offenses.”); Jeffrey Fagan, Race, Legitimacy, and Criminal Law, 4 Souls 69, 70 (2002) (“Under the recent policies of the New York City Police Department, aggressive stops and searches have been disproportionately aimed at nonwhite citizens, far outpacing their actual involvement in crime.”); Jeffrey A. Fagan, Amanda Geller, Garth Davies & Valerie West, Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in Race, Ethnicity, and Policing: New and Essential Readings 309, 311, 323–25, 331–32 (Stephen K. Rice & Michael D. White eds., 2010) (finding that broken windows enforcement is concentrated in majority-minority neighborhoods); Reed Collins, Note, Strolling While Poor: How Broken-Windows Policing Created a New Crime in Baltimore, 14 Geo. J. on Poverty L. & Pol’y 419, 426 (2007) (“When police departments do adopt aggressive arrest policies to combat disorder, . . . the group[s] most affected by those strategies . . . [are] ‘both African Americans and the poor.’”); Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1486 (2016) (“[O]ur perception of disorder is racialized . . . . [A] police officer is more likely to view three black teenagers on a street corner as a sign of disorder than he is to so view three white teenagers.”). ↑
Mike Laws, Why We Capitalize ‘Black’ (and Not ‘white’), Colum. Journalism Rev. (June 16, 2020), https://www.cjr.org/analysis/capital-b-black-styleguide.php [https://perma.cc/5Z7H-CQT8] (“For many people, Black reflects a shared sense of identity and community. White carries a different set of meanings; capitalizing the word in this context risks following the lead of white supremacists.”). ↑
Patten et al., supra note 95, at 14, 76; Kohler-Hausmann, supra note 5, at 51 fig.1.10 (tracking misdemeanor arrests by race and ethnicity from 1990–2015); cf. Floyd v. City of New York, 959 F. Supp. 2d 540, 556 (S.D.N.Y. 2013) (detailing more than 4.4 million stops over an eight-year period, overwhelmingly of people of color, with figures approaching 90% certain years). This is consistent with racial disparities in quality-of-life policing nationally. Harcourt, supra note 83, at 173 tbl.6.4 (finding that, across large American cities, police arrested Black people disproportionately to white people for every category of public-order misdemeanor). ↑
Patten et al., supra note 95, at 14–15. ↑
Peters & Eure, supra note 91, at 41, 43. ↑
Id. at 16. ↑
On the intersection between gentrification and racialized order-maintenance policing, see Harold Stolper, New Neighbors and the Over-Policing of Communities of Color, Cmty. Serv. Soc’y (Jan. 6, 2019), https://www.cssny.org/news/entry/New-Neighbors [https://perma.cc/89PJ-B89Y] (“The largest increases in NYPD-referred complaints occurred in communities of color with large influxes of white residents accompanied by new housing development.”); cf. Goluboff, supra note 88, at 234–35 (discussing use of vagrancy laws to control people “out of place”); Carbado, supra note 104, at 1492 (describing people of color who are “presumptively ‘out of place’ and therefore presumptively suspicious because of the racial geography”). See generally Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect, at ix (2012) (discussing the “powerful effects of ecologically concentrated disadvantage on individual outcomes as well as rates of behavior across neighborhoods”). ↑
Tracey L. Meares, Programming Errors: Understanding the Constitutionality of Stop-and-Frisk As a Program, Not an Incident, 82 U. Chi. L. Rev. 159, 175 (2015) (“The fact that racial minorities in cities disproportionately encounter police in both constitutional and unconstitutional contexts fuels [their] perceptions of the illegitimacy of the police.”); Bowers & Robinson, supra note 10, at 246–52 (examining popular perceptions of order-maintenance policing); Rod K. Brunson, “Police Don’t Like Black People”: African-American Young Men’s Accumulated Police Experiences, 6 Criminology & Pub. Pol’y 71, 85 (2007) (finding that minority members of “distressed neighborhood[s]” harbor expectations of disrespectful treatment by police officers). Black musicians have described their experiences firsthand. See, e.g., Brand Nubian, Probable Cause, on Foundation (Arista Records 1998) (“Couldn’t believe it when he took me in/Threw me and my man up in the van, a seven-hour stand/ . . . Now Giuliani wanna talk about the ‘quality of life’/Think he got the right to follow me at night/ . . . Up in central booking . . . people looking.”). ↑
Aya Gruber, Why Amy Cooper Felt the Police Were Her Personal “Protection Agency,” Slate (May 27, 2020), https://slate.com/news-and-politics/2020/05/amy-cooper-white-women-policing.html [https://perma.cc/9595-KDCJ]. ↑
Skogan, supra note 57, at 6 (“After the Civil War, police focused their attention on minor offenses against public order. This led to skyrocketing arrests for public drinking, vagrancy, suspicion, and loitering.”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 13 (2010). ↑
City of Chicago v. Morales, 527 U.S. 41, 54 n.20 (1999) (“[M]any American vagrancy laws were patterned on these ‘Elizabethan poor laws.’ . . . In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery.”); Goldman v. Knecht, 295 F. Supp. 897, 902 (D. Colo. 1969) (“Vagrancy control dates back to the fourteenth century . . . as an economic measure which sought to shore up the crumbling structure of feudal society by prohibiting mobility among the laboring class . . . [and] in post-feudal society as a means of protecting a local community from . . . undesirable strangers.”); Goluboff, supra note 88, at 253; Roberts, supra note 37, at 7–8 (noting that the “carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained”); Connie Hassett-Walker, The Racist Roots of American Policing: From Slave Patrols to Traffic Stops, Conversation (June 2, 2020), https://theconversation.com/the-racist-roots-of-american-policing-from-slave-patrols-to-traffic-stops-112816 [https://perma.cc/4YZ4-RCJB]; Skogan, supra note 57, at 6 (discussing policing efforts to bring “immigrants into conformity with the labor discipline of industrial society”); Smith, supra note 71 (“[L]ocal governments can criminalize sleeping outside, or criminalize panhandling, which begins to look a lot like the criminalization of vagrancy as part of the Black Codes in the era that ended Reconstruction.”). See generally Karakatsanis, supra note 34, at 16 (“If the function of the modern punishment system is to preserve racial and economic hierarchy through brutality and control, then its bureaucracy is performing well.”); Butler, supra note 81, at 144243 (arguing that the system is designed for racial and economic oppression); Kohler-Hausmann, supra note 5, at 7 (“[A] Marxian approach understands punishment as social control by being an instrument of class control. . . . [T]he forms of punishment in our society are determined by the needs of the ruling class to control the laboring classes.”). ↑
Clay Cane, The Original Karens: From Emmett Till’s Accuser to the White Woman Who Sparked the Tulsa Massacre, BET (June 19, 2020), https://www.bet.com/news/national/‌2020/06/19/original-karens-emmett-till-accuser-tulsa-massacre.html [https://perma.cc/USC5-WT2B]. ↑
Decoder Ring: The Karen, Slate (July 13, 2020), https://slate.com/podcasts/decoder-ring/2020/07/decoder-ring-the-karen [https://perma.cc/T7YL-37DQ]. ↑
Harcourt, supra note 83, at 172 (“Law enforcement policies that target minor disorderly conduct only aggravate the black face of crime.”). ↑
See, e.g., Julian V. Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives 7–8 (2008); Youngjae Lee, Recidivism as Omission: A Relational Account, 87 Tex. L. Rev. 571, 610 (2009); Andrew von Hirsch, Proportionality and Progressive Loss of Mitigation: Further Reflections, in Previous Convictions at Sentencing: Theoretical and Applied Perspectives 1, 1–16 (Julian V. Roberts & Andrew von Hirsch eds., 2010); Julian V. Roberts, First-Offender Sentencing Discounts: Exploring the Justifications, in Previous Convictions at Sentencing, supra, at 17–35; Youngjae Lee, Repeat Offenders and the Question of Desert, in Previous Convictions at Sentencing, supra, at 49–71; Christopher Bennett, “More to Apologize For”: Can a Basis for the Recidivist Premium Be Found Within a Communicative Theory of Punishment?, in Previous Convictions at Sentencing, supra, at 73–89; Richard Dagger, Playing Fair with Recidivists, in Recidivist Punishments: The Philosopher’s View 41, 41–59 (Claudio Tamburrini & Jesper Ryberg eds., 2012); Julian V. Roberts, Past and Present Crimes: The Role of Previous Convictions at Sentencing, in Recidivist Punishments: The Philosopher’s View, supra, at 115–33; Christopher Bennett, Do Multiple and Repeat Offenders Pose a Problem for Retributive Sentencing Theory?, in Recidivist Punishments: The Philosopher’s View, supra, at 137–56; Andrew von Hirsch, Desert and Previous Convictions in Sentencing, 65 Minn. L. Rev. 591, 594–95 (1981); Andrew von Hirsch, Criminal Record Rides Again, 10 Crim. Just. Ethics 2, 55 (1991); Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the Principles 131–32 (2005); David A. Dana, Rethinking the Puzzle of Escalating Penalties for Repeat Offenders, 110 Yale L.J. 733, 738–39 (2001). ↑
Lewis, supra note 9, at 3–6; infra notes 189–90 and accompanying text (responding to prevention-based justification). ↑
U.S. Sent’g Guidelines Manual, ch. 4, pt. A, introductory cmt. (U.S. Sent’g Comm’n 2016); Lewis, supra note 9, at 5 (“Some argue that in cases of repeat offending, we have more evidence of malice, ill will, or bad character than we do when someone is convicted of an otherwise similar first offense.”). ↑
Ewing, supra note 28, at 300–01. ↑
Lee, supra note 118, at 581, 585, 599–600, 609–10, 613–14 (2009) (noting that “the fact that one did not do what one was told to do is precisely at the heart of this type of criminality”); von Hirsch, Proportionality and Progressive Loss of Mitigation: Further Reflections, supra note 118, at 9 (“The offender’s original conviction and punishment should put him on notice that under certain circumstances he may be tempted to offend again.”); see also Jeffrey W. Howard, Punishment as Moral Fortification, 36 Law & Phil. 45, 49 (2017). ↑
Lewis, supra note 9, at 17–18; see also von Hirsch, Proportionality and Progressive Loss of Mitigation: Further Reflections, supra note 118, at 2; Roberts, First-Offender Sentencing Discounts: Exploring the Justifications, supra note 118, at 20–22; Roberts, Punishing Persistent Offenders, supra note 118, at 82; Dana, supra note 118, at 779 (“The ‘break’ given first-time violators can be understood . . . as morally appropriate because the violator may have simply made a mistake or acted foolishly out of impulse, rather than having determinedly flouted the moral authority of the laws.”). ↑
Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 16 (2007) (discussing the sentiment that a “zero-risk environment is . . . a reasonable expectation, even a right”); infra notes 217–24 and accompanying text (discussing crime control and risk aversion). ↑
Joseph E. Kennedy, Monstrous Offenders and the Search for Solidarity Through Modern Punishment, 51 Hastings L.J. 829, 831–33 (2000) (examining the contemporary cultural depiction of the criminal as “monster,” and describing the criminal-legal system as a “civic religion” of us versus “them”); see also Karakatsanis, supra note 34, at 67 (“The ‘law enforcement’ religion is hostile to the view that a society that is more equal would have less crime, not because that idea is untrue, but because the very goal of the criminal legal system is to preserve certain elements of an unequal social order.”); cf. Kohler-Hausmann, supra note 5, at 6 (citing Émile Durkheim for the proposition that “punishment is a social enterprise that expresses a group’s foundational, shared moral order and sustains it by enacting rituals”). ↑
Kennedy, supra note 125, at 829; Lara Abigail Bazelon, Exploding the Superpredator Myth: Why Infancy Is the Preadolescent’s Best Defense in Juvenile Court, 75 N.Y.U. L. Rev. 159, 165–67 (2000); Tamar R. Birckhead, The Racialization of Juvenile Justice and the Role of the Defense Attorney, 58 B.C. L. Rev. 379, 408–11 (2017). See generally James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe 13 (2003) (discussing the powerful contemporary American “drive to hit every offender . . . hard”). ↑
Simon, supra note 124, at 108; Harcourt, supra note 83, at 26 (“Though [the convicted offender] may continue to live in the projects, he is no longer a ‘project resident,’ no longer a ‘citizen,’ and no longer has a legitimate voice.”). ↑
Zimring, supra note 3, at 192–93; Kohler-Hausmann, supra note 5, at 268 (“[T]he instrumentalities of criminal law [are] the primary social control mechanisms in urban spaces of concentrated poverty and insecurity.”); Simon, supra note 124, at 10, 14 (describing crime control as a “first response” and urging “a movement to restore crime to its rightful place as one ‘social’ problem among many”). ↑
Zimring, supra note 3, at 192–93 (discussing the “everything works” crime-control mentality); Skogan, supra note 57, at 3 (observing that “disorder[] often lead[s] to complaints that the authorities ‘do something’”); United States v. Clary, 846 F. Supp. 768, 793 (E.D. Mo. 1994) (noting “the demands of [political] constituenc[ies] to ‘do something’ about the most pressing problem in America today—crime”). ↑
Simon, supra note 124, at 273 (noting that the logic behind broken windows is that “dangerous acts arise from dangerous people whom you know by their character, to be read in their minor conduct”). ↑
Jeffrie G. Murphy & Jean Hampton, Introduction, in Forgiveness and Mercy 1, 2 (1988) (“[L]egal doctrines are rooted in specific passions (feelings, emotions) . . . . [T]he criminal law . . . institutionalizes certain feelings of anger, resentment, and even hatred.”). See generally William Ian Miller, The Anatomy of Disgust 34–35 (1997) (discussing the manner by which disgust and hatred produce a preference for punishment and ostracism). ↑
David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 131 (2001) (quoting James Q. Wilson). ↑
Lee, supra note 118, at 618, 620. ↑
Id. at 609–10, 613–14; Karakatsanis, supra note 34, at 21 (“The standard narrative portrays ‘criminals’ as a vast collection of individuals who have each made a choice to ‘break the law.’ Convictions and punishments are consequences that flow naturally from that bad choice.”); infra notes 222–27 and accompanying text (discussing luck, freewill, and the “American Dream”). ↑
Floyd v. City of New York, 959 F. Supp. 2d 540, 667 (2013) (holding that NYPD’s practice of stop and frisk systematically violated the equal protection and Fourth Amendment rights of class-action litigants); Ligon v. City of New York, 925 F. Supp. 2d 478, 540–41 (2013) (holding the same as to the practice of stop and frisk as part of trespass enforcement). ↑
Peters & Eure, supra note 91, at 7 (emphasis added). ↑
Misdemeanor Justice Project, The Criminal Justice Reform Act Evaluation: Post Implementation Changes in Summons Issuance and Outcomes 7 (2018). ↑
Bratton, supra note 97, at 15 (“A person stopped for a violation of transit rules [even a non-criminal violation] who is identified as a transit recidivist is ineligible for a civil notice and must be arrested for the offense.”); see also Class Action Complaint at 12–13, R.C. v. City of New York, 100 N.Y.S.3d 824 (N.Y. Sup. Ct. 2019) (No. 153739/2018) (detailing NYPD mandatory arrest policy for transit recidivists); Harold Stolper & Jeff Jones, Community Service Society of New York, The Crime of Being Short $2.75: Policing Communities of Color at the Turnstile 24 (2017). ↑
Alexa St. John, MTA Board Considers Banning Repeat Transit Criminals from Subway, Wall St. J. (June 24, 2019), https://www.wsj.com/articles/mta-board-considers-banning-repeat-transit-criminals-from-subway-11561414572 [https://perma.cc/N23W-TNN5]; cf. supra, infra notes 63, 131–134, 222–27 and accompanying text (discussing culture of blame and shame and “governing through crime”). ↑
Rocco Parascandola, Shayna Jacobs, Jillian Jorgensen, Thomas Tracy & Graham Rayman, NYPD Top Cop Slams DA Cy Vance for Not Prosecuting Some Fare-Beaters, N.Y. Daily News (Feb. 6, 2018), https://www.nydailynews.com/new-york/nypd-top-slams-da-vance-not-prosecuting-fare-beaters-article-1.3803058; Alison Fox & Vincent Barone, Turnstile Jumpers With Open Summonses Will No Longer Be Arrested, AMNY (Aug. 1, 2018), https://www.amny.com/news/fare-evasion-arrests-nyc-1-20238070/ [https://perma.cc/T68Y-5YDR]; Alexander C. Kaufman, As New York Cracks Down on Fare Evasion, Another City Weighs Free Transit, Huffington Post (Nov. 18, 2019), https://www.huffpost.com/entry/mbta-free-transit_n_5dd2e1d6e4b01f982f06b00c [https://perma.cc/7SH2-7M5H]. ↑
Kohler-Hausmann, supra note 5, at 5, 108, 132, 165, 252 (describing the process by which penalties escalate for recidivist misdemeanants and indicating that “the defendant’s record largely dictates . . . the sentence”); id. at 97 (quoting public defender: “[A] person can be stopped and searched fifteen times before they’re arrested. . . . And then they get an ACD. . . . And then once your fingerprint even reflects contact with the system, you’re in a different posture. . . . [Next time, y]ou get a [violation] and then you get a misdemeanor, and then you get jail time”). ↑
Kohler-Hausmann, supra note 5, at 115, 293 n.37 (indicating that “operation spotlight” lasted over a decade but is “now largely defunct in some boroughs”); Julia Vitullo-Martin, Operation Spotlight, Etc., Gotham Gazette (June 1, 2002), https://www.gothamgazette.com/criminal-justice/1657-operation-spotlight-etc [https://perma.cc/788H-99QC]; Freda F. Solomon, Operation Spotlight: Year Four Program Report 1–4 (2007). ↑
Solomon, supra note 142, at 1–4, 12, 37 (detailing Operation Spotlight in practice); Kohler-Hausmann, supra note 5, at 293 n.37 (same). It is not obvious which spotlight cases involved quality-of-life offenses. But it stands to reason that these charges were the overwhelming majority because—depending on the borough—only 3–8% of Operation Spotlight cases involved “harm to persons.” Solomon, supra note 142, at 11, 16. Comparatively, in every borough, more than one-half to more than two-thirds of spotlight cases involved drugs, trespass, or turnstile hops. Solomon, supra note 142, at 16. ↑
Solomon, supra note 142, at 10; John Feinblatt, Office of the Criminal Justice Coordinator, Criminal Justice Indicator Report 15 (2013). ↑
Solomon, supra note 142, at 6. ↑
Kohler-Hausmann, supra note 5, at 132, 264, 266 (coining the term “misdemeanorland” and explaining that the “moral meaning” of misdemeanors is distinct from felonies, but suggesting that longtime recidivists may “have the same cultural status” as felons); Garland, supra note 132, at 191–92 (discussing the manner by which “a record of prior offending affects the individual’s perceived moral status,” displacing “careful calculations of cost and effect” in favor of “a very different way of thinking which presses the imperatives of punishing criminals and protecting the public, ‘whatever the cost’”). ↑
McLeod, supra note 49, at 1616; Angela Y. Davis, Freedom Is a Constant Struggle: Ferguson, Palestine, and the Foundations of a Movement 7, 90 (2016) (arguing that prison reform, as opposed to abolition, grants the current institution undue legitimacy); Karakatsanis, supra note 34, at 93; see also Note, The Paradox of “Progressive Prosecution”, 132 Harv. L. Rev. 748, 759–68 (2018) (highlighting the manner by which structural barriers undermine systemic reforms to the criminal-legal system). ↑
Karakatsanis, supra note 34, at 93; cf. Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 921–23, 930–31 (2006) (comparing the incentives of criminal-legal insiders and outsiders). ↑
Karakatsanis, supra note 34, at 16, 73, 85 (cautioning against “advocates of some of the harshest punishments in the world pushing minor changes . . . for purposes that they do not acknowledge”); see also Butler, supra note 81, at 1466–68 (2016) (noting how incremental steps can distract from more meaningful systemic change). ↑
Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. Rev. 783, 830, 834–35 (2008); see also Daniel Abrahamson, Drug Courts Are Not the Answer: Guest Commentary, L.A. Daily News (May 12, 2015), https://www.dailynews.com/2015/05/12/drug-courts-are-not-the-answer-guest-commentary/ [https://perma.cc/M5CM-4U7G] (highlighting the practical shortcomings of California’s drug courts). ↑
Bowers, supra note 150, at 795–97. ↑
Id. at 786, 789 (“[D]rug courts . . . provide the worst results to their target populations . . . . Conversely, drug offenders who are noncompulsive or less compulsive ultimately do much better. . . . As such, the expected failure of addicts to respond to external stimuli seems an odd basis from which to subject them to alternative sentences that outstrip standard pleas.”); infra notes 228–37 and accompanying text (discussing recidivism as evidence of need). ↑
Bowers, supra note 150, at 807 (discussing “coerced treatment that uses conventional justice as a backstop”); see, e.g., Kohler-Hausmann, supra note 5, at 253 (quoting a drug-court prosecutor: “[W]e have to take a stance and offer a jail alternative. We are a DA’s office in the end.”); cf. Erin R. Collins, The Problem of Problem-Solving Courts, 54 U.C. Davis L. Rev. 1573, 1573 (2021) (noting that the problem with “the problem-solving court model . . . [is that] its entrenchment creates resistance to alternatives that might truly reform [or transform] the system”). ↑
See generally Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 Vand. L. Rev. 831, 843 (2000) (describing the first drug court in Miami-Dade County, Florida); The Early Drug Courts: Case Studies in Judicial Innovation 7 (W. Clinton Terry III ed., 1999) (describing efforts by drug court judges to address social harms that may contribute to drug dependency and criminal conduct). ↑
Karakatsanis, supra note 34, at 82 (“[A] movement to dismantle the punishment bureaucracy must learn how to distinguish little tweaks from big changes.”). ↑
Unger, supra note 42, at 29–32, 49–50. ↑
Id. at 30, 49. ↑
Id. at 49. ↑
Dorf & Sabel, supra note 154, at 841; see also Richard C. Boldt, Problem-Solving Courts and Pragmatism, 73 Md. L. Rev. 1120, 1130–31 (2014) (examining the pragmatic principles underlying problem-solving courts); Bowers, supra note 150, at 796 (“Drug courts . . . are experimentalist institutions born of incremental compromise. They developed from the ground up in ad hoc and undertheorized fashions.”). ↑
Dorf & Sabel, supra note 40, at 283–86. ↑
Bowers, supra note 150, at 807 (noting that drug court punishments “are informed by the same social, economic, and institutional pressure points that historically have led to disparate punishment under the conventional . . . war on drugs”). ↑
Susan R. Klein, Independent-Norm Federalism in Criminal Law, 90 Cal. L. Rev. 1541, 1542 (2002). ↑
Id.; see Charles Sabel, Dewey, Democracy, and Democratic Experimentalism, 9 Contemp. Pragmatism 35, 36 (2012) (“Dewey was nothing if not a fallibilist. He held that inquiry in its exemplary form—in the laboratory—was a process of continuous self-correction, of learning from mistakes . . . [of pursuing] the ideal of democracy.”); Unger, supra note 42, at 23 (“[T]he promises of democracy can be kept only by the ceaseless experimental renewal of their institutional vehicles.”). ↑
See Karakatsanis, supra note 34, at 68–69 (arguing that the “‘law enforcement’ myth . . . lulls people into abandoning scrutiny of their assumptions”); Butler, supra note 81, at 1466–69. ↑
Peters & Eure, supra note 91, at 3, 8 (“What caused or contributed to the City’s decline in crime has been a continuing debate.”). Significantly, however, I endorse a radically different objective and metric for measuring success. Infra Section III.B. (discussing harm reduction and the “capabilities approach”). ↑
William Bratton & George L. Kelling, The Assault on ‘Broken Windows’ Policing, Wall St. J. (Dec. 18, 2014), https://www.wsj.com/articles/william-bratton-and-george-kelling-the-assault-on-broken-windows-policing-1418946183 [https://perma.cc/P3YS-T6YT]; George L. Kelling & William J. Bratton, Why We Need Broken Windows Policing, City J. (Winter 2015). See generally Wesley G. Skogan, Broken Windows: Why—and How—We Should Take Them Seriously, 7 Crim. & Pub. Pol’y 195 (2008) (describing broken windows policing’s effect on social order). ↑
See Franklin E. Zimring, supra note 3; see also Michael Tonry, Why Crimes Rates Are Falling Throughout the Western World, 43 Crime & Just. 1, 17–18 (2014) (describing national decline in American crime nationwide). ↑
Peters & Eure, supra note 91, at 4 (“Between 2010 and 2015 there was a dramatic decline in quality-of-life enforcement with no increase in felony crime. In fact, felony crime, with a few exceptions, declined along with quality-of-life enforcement . . . . [We] find[] no empirical evidence to suggest that crime control can be directly attributed to quality-of-life summonses and misdemeanor arrests.”); see also William Wan, Does New York City’s ‘Broken Windows’ Policing Work? New Report Says No, Wash. Post (June 22, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/06/22/does-nypds-broken-windows-policing-work-new-report-says-no/ [https://perma.cc/FNU8-MCS7] (refuting that quality-of-life policing was responsible for fewer felony crimes in New York City). ↑
Carbado, supra note 104, at 1486 n.14 (“The empirical evidence on this theory is mixed, at best.”). ↑
Zimring, supra note 3, at 80; Harcourt, supra note 83; see also Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271 (2006) (detailing the lack of positive evidence in favor of broken windows policing); Agan, Doleac & Harvey, supra note 71, at 37 (finding that, under some circumstances, not prosecuting individuals for nonviolent misdemeanors reduces recidivism). ↑
Lewis, supra note 9, at 8–9 n.21; see Carbado, supra note 104, at 1488–89 (observing that selective order-maintenance policing creates recidivists in some places but not others, depending upon where police exercise discretion to focus enforcement efforts); see also Simon, supra note 124, at 274; Harcourt, supra note 83, at 172 (explaining that because of the “disparate impact” of broken windows policing, it is “practically impossible to gauge [the rate of] misdemeanors reliably by race”). ↑
See Bowers, supra note 34, at 1124–32 (describing the incentives of police and prosecutors in public-order cases). ↑
See Josh Bowers, The Normative Case for Normative Grand Juries, 47 Wake Forest L. Rev. 319 (2012) (describing “disposable” cases); see also Bowers, supra note 34, at 1124–27; Bowers, supra note 10, at 1698–99. ↑
Bowers, supra note 34, at 1124–27; Bowers, supra note 36, at 210 (describing “the propensity of the law enforcer to exercise dominion reflexively over the usual suspect”); Lewis, supra note 9, at 16 (“Having a prior criminal record itself makes people easier to monitor, and thus more likely to get caught . . . easier to detect.”). ↑
Josh Bowers, Upside-Down Juries, 111 Nw. U. L. Rev. 1655, 1674 (2017) (describing the practice). ↑
Bowers, supra note 34, at 1132–38 (describing “process pleas” to avoid “process costs”); see Kohler-Hausmann, supra note 5, at 124 fig.3.5, 132 (indicating that “the defendant’s record largely dictates . . . the incentive to take the plea at arraignment,” and finding a range of between approximately 50% and 70% of New York City sub-felony cases disposed of at arraignments between the years 1992 and 2014). ↑
See Kohler-Hausmann, supra note 5, at 97 (quoting a public defender: “[T]hat’s how a criminal record builds . . . . Good pleas, bad pleas. They were guilty, they weren’t. The main thing is to get out of jail.”); id. at 266 (“The probability of conviction . . . increases substantially with each subsequent criminal conviction.”); Jeffries, supra note 58, at 197, 215 (describing “street-cleaning” statutes as laws that “invite manipulation . . . for which the individualized adjudication of guilt is an unusually inadequate check on police and prosecutorial action”); Bowers, supra note 34, at 1124–31; Bowers, supra note 10, at 1705–12. See generally Stephanos Bibas, The Machinery of Criminal Justice (2012) (describing the justice system’s emphasis on speedy convictions). ↑
Kohler-Hausmann, supra note 5, at 264–65. ↑
See Wikipedia, Loosie, https://en.wikipedia.org/wiki/Loosie [https://perma.cc/NC8T-DVMW] (defining a “loosie” as a “single cigarette . . . purchased or sold . . . illegal[ly] and commonly . . . in low-income areas,” and noting that Eric Garner died after a confrontation with police while allegedly selling loosies) (last visited Mar. 12, 2021); Urban Dictionary, Dollar Cab, https://www.urbandictionary.com/define.php?term=dollar%20cab [https://perma.cc/A3H2-UY26] (defining dollar cabs as “unmarked, unlicensed cabs, (usually vans) common in . . . ‘bad’ areas”) (last visited Mar. 12, 2021). ↑
Supra notes 97 & 174 and accompanying text (describing the likelihood of wrongful arrest of legally innocent “usual suspects” in quality-of-life trespass sweeps). ↑
See Bibas, supra note 177; Kohler-Hausmann, supra note 5, at 263. ↑
See Michael Massoglia & Christopher Uggen, Settling Down and Aging Out: Toward an Interactionist Theory of Desistance and the Transition to Adulthood, 116 Am. J. Soc. 543, 544–45 (2010). See generally John H. Laub & Robert J. Sampson, Shared Beginnings, Divergent Lives: Delinquent Boys to Age 70, at 4 (2003) (looking at patterns of criminal behavior over the life course of high-risk children); Darrell J. Steffensmeier, Emilie Andersen Allan, Miles D. Harer & Cathy Streifel, Age and the Distribution of Crime, 94 Am. J. Soc. 803, 803 (1989); Alex R. Piquero, David P. Farrington & Alfred Blumstein, Key Issues in Criminal Career Research: New Analyses of the Cambridge Study in Delinquent Development 207 (2007) (acknowledging that most offenders cease offending by age 40); Michael E. Ezell & Lawrence E. Cohen, Desisting from Crime: Continuity and Change in Long-Term Crime Patterns of Serious Chronic Offenders 269 (2005) (describing the phenomenon of “aging out” and its implications for society). ↑
See Johann Hari, Chasing the Scream: The First and Last Days of the War on Drugs 212 (2015) (“Most addicts will simply stop, whether they are given treatment or not, provided prohibition doesn’t kill them first.”); Richard Lawrence Miller, The Case for Legalizing Drugs 53 (1991) (“Researchers have found chronological age to be a prevalent reason for drug abuse. Abuse is typically a young person’s habit, given up as the individual matures. Most opiate addicts relinquish their drug within [ten] years.”); The Sentencing Project, People Serving Life Exceeds Entire Prison Population of 1970, at 3 (2020) (“Even so-called ‘chronic-offenders,’ people who have committed repeated crimes, gradually desist from criminal conduct so that their public safety risk is substantially reduced by their late 30s or 40s.”). ↑
Shawn D. Bushway, Paul Nieuwbeerta & Arjan Blokland, The Predictive Value of Criminal Background Checks: Do Age and Criminal History Affect Time to Redemption?, 49 Criminology 27, 49–50 (2011). ↑
John Feinblatt, Office of the Criminal Justice Coordinator, Criminal Justice Indicator Report 5 (2013). ↑
Lewis, supra note 9, at 8; see also Paul Gendreau, Tracy Little & Claire Goggin, A Meta-Analysis of the Predictors of Adult Offender Recidivism: What Works!, 34 Criminology 575, 588 (1996) (finding that “criminal history” correlates with recidivism). ↑
Solomon, supra note 142, at 5–6. ↑
Patten et al., supra note 95, at 27. ↑
Kohler-Hausmann, supra note 5, at 108; cf. Todd R. Clear & James Austin, Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, 3 Harv. L. & Pol’y Rev. 307, 319 (2009) (“[W]ith little exception, the outer years of [long prison] terms have no public safety value.”). ↑
Compare Joseph Kahn, Are Long Baseball Contracts Worth It?, Bos. Globe (Apr. 15, 2015), https://www.bostonglobe.com/magazine/2015/04/01/are-long-baseball-contracts-worth/lJNSnCmD8VjSvO9YQLb0zH/story.html [https://perma.cc/2PFK-5DNW] (“Megadeals for players that stretch well into their 30s are perilous. So why do teams keep doing it?”), with The Sentencing Project, supra note 183, at 3 (“Most people serving life, including for murder, will not forever present a risk to public safety. . . . Therefore, from a public safety perspective, life imprisonment is an unwise investment.”). ↑
Hari, supra note 183, at 172–75. ↑
See, e.g., Robert Weiss, The Opposite of Addiction Is Connection: New Addiction Research Brings Surprising Discoveries, Psych. Today (Sept. 30, 2015), https://www.psychologytoday.com/us/blog/love-and-sex-in-the-digital-age/201509/the-opposite-addiction-is-connection [https://perma.cc/5K5V-GES7]; Bowers & Abrahamson, supra note 14, at 802 (“The environmental theory of addiction insists that pharmacology is only secondarily related to dependence. Chemicals have physiological effects to be sure, but plenty of drug users . . . maintain relative free will to ingest (or not) without becoming dependent.”); see also Hari, supra note 183, at 173 (describing how 95% of American addicts returning from the Vietnam War stopped using). ↑
See infra notes 384–90 and accompanying text (discussing link between incarceration, social isolation, and “lost time”). ↑
Hari, supra note 183, at 166. ↑
Supra notes 142–46 and accompanying text (discussing “Operation Spotlight”). ↑
Unger, supra note 42, at 7–8. ↑
Id. at 29, 31–32. ↑
See Dorf & Sabel, supra note 40, at 284 (observing that “we do not aim to provide conclusive answers to particular controversies” because “[a] method founded on the generalization of experimental corrigibility would belie itself in proceeding otherwise”); supra notes 37–45 and accompanying text (discussing radical pragmatism as a social-movement strategy for political persuasion). ↑
Unger, supra note 42, at 37–38 (emphasis added); RSA, supra note 46. ↑
Unger, supra note 42, at 37–38, 43 (emphasis added). This is something John Dewey understood, as well: “Ideals express possibilities . . . . Imagination can set them free from their encumbrances . . . . But, save as they are related to actualities, they are pictures in a dream.” John Dewey, Individualism Old and New 72 (1999). ↑
Adrian Vermeule, Integration from Within, 2 Am. Affs. 202 (Spring 2018). ↑
Micah Schwartzman & Jocelyn Wilson, The Unreasonableness of Catholic Integralism, 56 San Diego L. Rev. 1039, 1041–43 (2019) (“Integralists argue that liberalism is a relentless and destructive ideology. . . . These are radical views . . . . Catholic integralism . . . conflict[s] with a conception of reasonableness that requires cooperating on fair terms, including by respecting the freedom and equality of citizens . . . .”). ↑
Vermeule, supra note 201; Matt Ford, The Emerging Right-Wing Vision of Constitutional Authoritarianism, New Republic (Apr. 2, 2020), https://newrepublic.com/article/157132/emerging-right-wing-vision-constitutional-authoritarianism [https://perma.cc/XUR3-CB5W] (“[Vermeule] imagines a small coterie of integralists infiltrating elite institutions and the machinery of the liberal state so they can subtly co-opt them in favor of their ultimate goals.”). ↑
Vermeule finds critics on the right and the left. See, e.g., Randy E. Barnett, Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution: This Wolf Comes as a Wolf, Atlantic (Apr. 3, 2020), https://www.theatlantic.com/ideas/archive/2020/04/dangers-any-non-originalist-approach-constitution/609382/ [https://perma.cc/29WF-CVVC]; Garrett Epps, Common-Good Constitutionalism Is an Idea as Dangerous as They Come: It’s an Argument for Authoritarian Extremism, Atlantic (Apr. 3, 2020), https://www.theatlantic.com/ideas/archive/2020/04/‌common-good-constitutionalism-dangerous-idea/609385/ [https://perma.cc/C6UC-XL74]. ↑
Simon, supra note 124, at 259–83. ↑
See generally Ezekiel J. Emanuel, et al., Fair Allocation of Scarce Medical Resources in the Time of Covid-19, 382 N.E. J. Med. 2049, 2051–52 (May 21, 2020) (proposing “six specific recommendations for allocating medical resources in the Covid-19 pandemic”). ↑
See infra Conclusion (examining the ways in which our pandemic response could do more to embrace harm reduction). ↑
See generally Dayna Bowen Matthew, Just Medicine: A Cure for Racial Inequality in American Health Care (2015) (illustrating racial and ethnic disparities in America’s health care system and discussing changes to correct them). ↑
See, e.g., Jeneen Interlandi, Why Doesn’t the United States Have Universal Health Care? The Answer Has Everything to Do with Race, N.Y. Times (Aug. 14, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/universal-health-care-racism.html [https://perma.cc/A7E7-FBDN]. ↑
Jason Tan de Bibiana, et al., Changing Course in the Overdose Crisis: Moving from Punishment to Harm Reduction and Health 2 (2020) (defining “the principles of harm reduction,” as applied to addiction, as “a set of practical strategies and ideas aimed at reducing the negative consequences of drug use without insisting on cessation of use” and by treating drug abuse as “a public health problem rather than a criminal justice issue”). ↑
See generally Robert J. MacCoun & Peter Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places 2 (2001) (assessing “the likely effects of legalization” and “review[ing] a wide variety of experiences and theories that have been used in the debates”); see also Robert J. MacCoun, Moral Outrage and Opposition to Harm Reduction, 7 Crim. L. & Phil. 83, 85 (2013) (examining “the tension between . . . prevalence reduction and harm reduction” and demonstrating that “many citizens are willing to blend” their different responses to risk); Robert J. MacCoun & Peter Reuter, Assessing Drug Prohibition and Its Alternatives: A Guide for Agnostics, 7 Ann. Rev. L. & Soc. Sci. 61, 73 (2011) (surveying the challenges and merits of ending drug prohibition, along with various alternatives to full prohibition); Robert J. MacCoun, Harm Reduction is a Good Label for a Criterion All Drug Programs Should Meet, 104 Addiction 341, 342 (2009) (arguing that “we should recognize explicitly three criteria—prevalence reduction, quantity reduction and average harm reduction—for any drug program, no matter how it might be labeled”); Don C. Des Jarlais, Harm Reduction in the USA: The Research Perspective and an Archive to David Purchase, 14 Harm Reduction J. 51 (2017) (recounting the history of harm reduction and the current challenges that it faces in the United States). ↑
It is not even obvious that widely available contraceptives do increase incidence of sex. Melissa Healy, Does No-Cost Contraception Promote Promiscuity? No, Says Study, L.A. Times (Mar. 6, 2014), https://www.latimes.com/science/sciencenow/la-sci-sn-contraceptives-sex-promiscuity-20140306-story.html [https://perma.cc/TL5L-YPKY]; Julia Marcus, Americans Aren’t Getting the Advice They Need, Atlantic (May 28, 2020), https://www.theatlantic.com/ideas/archive/2020/05/no-one-telling-americans-how-reopen-their-lives/612172/ [https://perma.cc/YW6V-4FTY] (“People have argued against providing the HPV vaccine to teens out of concern that it will lead them to have sex earlier or with more people, even though no evidence shows this to be the case.”). ↑
Helena Bachmann, Sex in the City: Zurich’s Prostitution ‘Sex Boxes’ Deemed Success in Switzerland, USA Today (Aug. 24, 2018), https://www.usatoday.com/story/news/‌world/2018/08/24/sex-boxes-make-legal-prostitution-safe-zurich-switzerland-europe/1083444002/ [https://perma.cc/XKC8-BETL]. ↑
Id. ↑
Id. ↑
Id. (quoting city’s website); see also id. (“The Swiss have taken this pragmatic approach to prevent exploitation, sexually transmitted diseases, links with criminal networks and other problems common in countries where sex commerce is banned.”). ↑
Glenn C. Loury & Bruce Western, Introduction: The Challenge of Mass Incarceration in America, 139 Daedalus 5, 6 (2010). ↑
How Stranger Danger Changed the Way Children Play, BBC News Mag. (Dec. 8, 2009); see also supra Section II.A (discussing crime-control governance and the irrationally costly and inequitable pursuit of a “zero-risk environment”). ↑
Simon, supra note 124, at 6–7, 14 (describing a culture of “fear and control” and noting that “[w]hat is visibly different about the way we govern since the 1960s is the degree to which crime is a first response”). ↑
Julia Marcus, Quarantine Fatigue Is Real, Atlantic (May 11, 2020), https://www.theatlantic.com/ideas/archive/2020/05/quarantine-fatigue-real-and-shaming-people-wont-help/611482/ [https://perma.cc/3VCP-AT2N] (“Public-health campaigns that promote the total elimination of risk, such as abstinence-only sex education, are a missed opportunity to support lower-risk behaviors that are more sustainable in the long term.”); supra notes 24–41 and accompanying text (discussing the costs of crime control and the failure to rationally assess them). ↑
Marcus, supra note 212. Notably, when we talk about “flattening the curve” of pandemic infection, we are speaking the language of harm reduction. We very much want case counts to drop, but that is not necessarily the primary goal. Our alternative aim is to reduce harm by spreading out the impact of infections across time and place to avoid overtaxing the medical personnel and resources. ↑
See, e.g., Horatio Alger, Jr., Ragged Dick: Or, Street Life in New York with the Boot Blacks (Hildegard Hoeller ed., 1868). ↑
Samuel Bazzi, Martin Fiszbein & Mesay Gebresilasse, Frontier Culture: The Roots and Persistence of “Rugged Individualism” in the United States (Nat’l Bureau of Econ. Rsch., Working Paper No. 23997, 2017); cf. infra notes 463–66 and accompanying text (discussing “rugged individualism” and resistance to COVID-epidemic mask-wearing orders). ↑
Unger, infra note 42, at 40 (“The blind fortune that presides over our birth—out of the consequences of the accidental coupling of our parents—pursues us in the big things as well as in the little ones.”). Of course, the idea of “lucky breaks” is related to “luck egalitarianism” and John Rawls’ discussion of the “natural lottery.” John Rawls, A Theory of Justice 63–64 (1921) (discussing the “natural lottery”). See generally Richard J. Arneson, Equality and Equal Opportunity for Welfare, 56 Phil. Stud. 77 (1989) (arguing that “the idea of equal opportunity for welfare is the best interpretation of the ideal of distributive equality”); G. A. Cohen, On the Currency of Egalitarian Justice, 99 Ethics 906 (1989) (examining “[w]hat aspect(s) of a person’s condition should count in a fundamental way for egalitarians, and not merely as cause of or evidence of or proxy for what they regard as fundamental”); Carl Knight, Luck Egalitarianism: Equality, Responsibility, and Justice 4 (2009). ↑
E.B. White, Here Is New York 19 (1949). ↑
Seidman, supra note 31, at 13; see also Dina R. Rose & Todd R. Clear, Incarceration, Social Capital, and Crime: Implications for Social Disorganization Theory, 36 Criminology 441 (1998) (arguing that “an overreliance on incarceration as a formal control may hinder the ability of some communities to foster other forms of control because they weaken family and community structures”); Unger, infra note 42, at 18 (“What individuals can do with their lives depends on the way society is organized and on their place within the social order, as well as on achievement and luck.”). ↑
Garland, supra note 132, at 48; Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3 L. & Inequality 9, 64 (1985). ↑
von Hirsch, Proportionality and Progressive Loss of Mitigation: Further Reflections, in Previous Convictions at Sentencing: Theoretical and Applied Perspectives, supra note 118, at 9; Julian V. Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives 2–7, 137–84 (2008) (observing that punishing recidivists more harshly is a persistent practice worldwide); cf. Lewis, supra note 9, at 29, 55–56 (offering reasons to do “the opposite of what human societies have done for millennia” with the recidivist premium). ↑
Kohler-Hausman, supra note 5, at 144–82 (discussing criminal-legal “marks”). ↑
Donald Black, Crime as Social Control, 48 Am. Socio. Rev. 34 (1983) (“There is a sense in which conduct regarded as criminal is often quite the opposite. Far from being an intentional violation of a prohibition, . . . it is self-help.”). On this score, I am reminded of the observation of my old boss, Robin Steinberg, former executive director of the Bronx Defenders. She claimed that—because the organization’s holistic-defense model served also the civil-legal and social-service needs of criminal-defense clients—it was a crime-fighting outfit; cf. Experts: Robin Steinberg, at http://gideonat50.org/experts/robin-steinberg/ [https://perma.cc/UX4C-TPL2] (describing holistic defense as a “model of representation to fight both the causes and consequences of involvement in the criminal justice system”). We eliminate crime by meeting people’s needs in the first instance. ↑
David L. Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385, 389 (1976) (asking “whether a free choice to do wrong can be found . . . in the act of a ‘modern Jean Valjean’”); Victor Hugo, Les Misérables (1862) (telling the story of Jean Valjean). ↑
Aditi Bagchi, Lying and Cheating, or Self-Help and Civil-Disobedience?, 85 Brook. L. Rev. 1, 20–21 (2020). ↑
Karl Marx, Critique of the Gotha Program (1875), reprinted in The Marx-Engels Reader 382, 388 (Robert C. Tucker ed., 1972). ↑
Ewing, supra note 28, at 283, 330 (observing that the recidivist premium “is problematic in practice because ex-offenders’ opportunities to avoid reoffending are arguably worsened by criminogenic prison conditions and collateral consequences of conviction to a greater extent than they are improved by . . . punishment”); see also Lee, supra note 118, at 618–20 (arguing that the state shares at least partial blame for an offender’s recidivism because it has “made it difficult for ex-offenders to pursue normal lives by denying them housing, welfare, education, certain jobs, and the ability to drive to work”); cf. Christopher Lewis, Incentives, Inequality, Criminality, and Blame, 22 Legal Theory 153 (2016) (arguing social conditions create incentives to commit crime, and, in such circumstances, blame is inappropriate). Ewing identified a number of moral and prudential objections to “large recidivist premiums,” including the criminogenic effect of long-term incarceration, the elasticity of criminal conduct, and corresponding concerns about the value of incapacitation. Ewing, supra note 28, at 292. But, to my thinking, Ewing did not go far enough. As I argue here, there are good reasons, in some circumstances, to doubt not only large recidivist premiums but any recidivist premium—and, in fact, any punishment at all for the longtime recidivist offender. ↑
Bowers, supra note 150, at 809 (describing akrasia in the context of addiction); Harry G. Frankfurt, Duty and Love, 1 Phil. Explorations 4, 5 (1998); see also Andrew Koppelman, Conscience, Volitional Necessity, and Religious Exemptions, 15 Legal Theory 215, 234 (2009); Ole-Jørgen Skog, The Strength of Weak Will, 9 Rationality & Soc’y 245 (1997); Donald Davidson, How Is Weakness of the Will Possible?, in Essays on Actions and Events 21 (2d ed. 2001) (1969); infra notes 356–61 and accompanying text (discussing “volitional necessity”). ↑
Peggy Fulton Hora, William G. Schma & John T.A. Rosenthal, Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America, 74 Notre Dame L. Rev. 439, 463, 523 (1999) (describing addiction as a “chronic, progressive, relapsing disorder”); Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479, 1485 (2004) (discussing the “inevitability of relapse”). ↑
Infra notes 255–61 and accompanying text (discussing environmental theories of addiction). ↑
Bowers, supra note 150, at 788 (“Ultimately, when drug courts imprison failing participants, they punish them not for their underlying crimes, but for their inability to get with the program.”); id. at 828 (“Drug courts . . . view the addict as only partially responsible (and, rhetorically, perhaps not even that) when valuing the retributive worth of his crime, but wholly rational and responsible when it comes to his success or failure at responding to the carrots and sticks of treatment.”). ↑
See generally Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263 (1979) (arguing that “people underweight outcomes that are merely probable in comparison with outcomes that are obtained with certainty”); Amos Tversky & Daniel Kahneman, Advances in Prospect Theory: Cumulative Representation of Uncertainty, 5 J. Risk & Uncertainty 297 (1992) (“develop[ing] a new version of prospect theory” that “allows different weighting functions for gains and for losses” and “confirm[s] a distinctive fourfold pattern of risk attitudes”). ↑
Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1539 (1998) (defining hyperbolic discounting as an irrational “impatience . . . for near rewards . . . and aversion . . . for near punishments”); George Ainslie, A Research-Based Theory of Addictive Motivation, 19 L. & Phil. 77, 91 (2000) (describing the hyperbolic discounter as one who “fails to develop a faculty for ‘utility constancy’”). On irrationality and addiction, see Michael Louis Corrado, Addiction and Responsibility: An Introduction, 18 L. & Phil. 579, 583–585 (1999); Michael Louis Corrado, Behavioral Economics, Neurophysiology, Addiction and the Law 1, 27 (Univ. of N.C. at Chapel Hill, UNC Legal Studies Research Paper No. 892007, 2006) (discussing the argument that addicts may discount hyperbolically because of “distorted reasoning[,] . . . a flaw in our way of approaching future costs and benefits . . . that . . . lands the addict . . . in hot water”); Richard Birke, Reconciling Loss Aversion and Guilty Pleas, 1999 Utah L. Rev. 205, 246 n.132 (1999) (“[W]e can see that criminals appear to be more risk seeking than the general population in both the decision to engage in prohibited behavior and in the decision to exacerbate penalties by hiding or running from detection.”); Lewis, supra note 9, at 15 (“[T]hose who commit crime tend to be impulsive and risk-seeking in general[.]”). On risk seeking and youth, see Laura Duberstein Lindberg, Scott Boggess, Laura Porter & Sean Williams, Teen Risk-Taking: A Statistical Portrait 22 (2000) (discussing statistics on risk-taking behaviors in adolescent males); Laurence Steinberg, A Social Neuroscience Perspective on Adolescent Risk-Taking, 28 Dev. Rev. 78 (2008) (citing sources); supra notes 182–95 and accompanying text (examining the “aging out” process whereby offenders and drug users temper risk-seeking behavior with age). ↑
Ewing, supra note 28, at 293 (explaining that deterrence theory does not support recidivist premiums where the recidivist has “problems rationally assessing his options, exercising self-control, or protecting his future interests when they come into conflict with immediate desires”). ↑
Infra notes 374–90 and accompanying text (discussing optimal screening); cf. Richard J. Bonnie, Anne M. Coughlin, John C. Jeffries, Jr. & Peter W. Low, Criminal Law 9 (4th ed. 2015) (introducing the argument that, to account for “society’s own conduct in relation to the actor,” the criminal law should allow for more capacious excuse defenses based upon “physiological, psychological, environmental, cultural, educational, economic, and hereditary factors”) (quoting David Bazelon). ↑
N.Y. Veh. & Traf. L. § 511(3)(a)(ii), (b) (McKinney 2013) (defining felony aggravated unlicensed operation of a motor vehicle as, inter alia, “operating a motor vehicle while . . . ha[ving] in effect ten or more suspensions,” and mandating prison sentence for predicate felons). ↑
Id. (providing mandatory prison or probation for felony “unlicensed operation”). ↑
Links have been drawn between obsessive compulsive disorder and kleptomania. Jon E. Grant, Understanding and Treating Kleptomania: New Models and New Treatments, 43 Isr. J. Psych. & Related Sci. 81 (2006) (“Evidence suggests that there may be subtypes of kleptomania that are more like OCD, whereas others have more similarities to addictive and mood disorders.”). ↑
It is also possible that the problem was situational necessity, but that seems less likely given widely available public transportation in New York City. In another part of the country, however—where car travel is more central to everyday living—my client’s criminal history might have pointed to the manner by which unlicensed driving is a crime of poverty. Infra notes 353–55 and accompanying text (discussing circumstances where unlicensed driving may be a crime of situational necessity). ↑
Herbert Morris, Rehabilitation and Dignity, in Principled Sentencing 20 (Andrew von Hirsch & Andrew Ashworth eds., 1992). ↑
Stephen J. Morse, The Twilight of Welfare Criminology: A Reply to Judge Bazelon, 49 S. Cal. L. Rev. 1247, 1253–54, 1268 (1976) (explaining that it is “respectful to the actor to hold the actor responsible”). ↑
Supra notes 222–27 and accompanying text (discussing luck, freewill, and the “American Dream”). ↑
Unger, supra note 42, at 35. ↑
Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Aff. 83, 111 (1993); Bibas, supra note 177, at xvi; Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1021–24 (criticizing the dominant role of formalism in criminal procedure); supra notes 172–81 and accompanying text (discussing criminal-legal “machinery” and the need for individualized justice). ↑
Unger, supra note 42, at 35 (“A philosophy that takes sides with the agent . . . [endeavors to] reveal how we can redirect thought and reorganize society so that the vision of the agent able to use contingency against constraint becomes more real, and the picture of the toolmaker made into a tool . . . becomes less real.”). ↑
Id. at 26, 28, 35 (explaining that “[a] radicalized pragmatism” uses as its touchstone “the agent and his ambitions”). ↑
RSA, supra note 46, at 5:59 and 2:50. ↑
Martha C. Nussbaum, Creating Capabilities: The Human Development Approach 46–56 (2013); see also Amartya Sen, The Idea of Justice 225–91 (2009); Amartya Sen, Capability and Well-Being, in Quality of Life 30, 30 (Martha Nussbaum & Amartya Sen eds., 1993). ↑
Nussbaum, supra note 255, at ix. ↑
Id. at 33–34, 49. ↑
Lewis, supra note 9, at 38–39 (discussing “conceptions of the good”); supra notes 78–80 and accompanying text. ↑
Nussbaum, supra note 255, at 33–34; see also Kony Kim, Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans 39–40 (2016) (Ph.D. dissertation, University of California, Berkeley) (ProQuest); supra notes 191–95 and accompanying text (discussing the “environmental theory” of addiction). ↑
Nussbaum, supra note 255, at 20, 29–33 (emphasizing dignity and human flourishing); Amartya Sen, Capabilities, Lists, and Public Reason: Continuing the Conversation, 10 Feminist Econ. 77, 77–80 (2004) (emphasizing a more generalized capabilities approach). ↑
Nussbaum, supra note 255, at 18-20; see also Kim, supra note 259, at 39 (“Among the most essential human capacities, in Nussbaum’s view, is the ability to make reasoned choices: in a word, agency . . . . When people are exercising agency reasonably, they’re living in a manner most worthy of their dignity. Thus, agency is vital to human flourishing, and respect for people’s dignity requires preserving and protecting their exercise of agency.”). ↑
Unger, supra note 42, at 51; cf. Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 2 (1988) (describing Unger as the “premiere spokesperson for the communitarian left”). ↑
See Rebecca Solnit, A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster 3 (2009) (“The very concept of society rests on the idea of networks of affinity and affection, and . . . the keeping of one’s brothers and sisters.”). ↑
West, supra note 262, at 1–2. ↑
Unger, supra note 42, at 18. In a related vein, Ta-Nehesi Coates wrote: “Slavery is not an indefinable mass of flesh. It is a particular, specific enslaved woman, whose mind is active as your own, whose range of feeling is as vast as your own . . . , who loves her mother in her own complicated way.” Ta-Nehisi Coates, Between the World and Me 69 (2015). ↑
See Kim, supra note 259, at 39 (“[E]fforts to protect agency must account for human vulnerability: by nature, people have inherent needs and weaknesses . . . . [P]eople need to inhabit societies that afford them freedom to flourish by meeting welfare needs, protecting against exploitation, and supporting the growth and exercise of essential human capacities.”). ↑
Unger, supra note 42, at 44. ↑
RSA, supra note 46, at 2:43; Unger, supra note 42, at 256. ↑
The concepts of mercy and forgiveness are, of course, familiar to many religious traditions. Murphy & Hampton, supra note 131, at 5. ↑
Luke 15:29–32 (King James) (“Lo, these many years do I serve thee, neither transgressed I at any time thy commandment: and yet thou never gavest me a kid, that I might make merry with my friends: but as soon as this thy son was come, which hath devoured thy living with harlots, thou hast killed for him the fatted calf.”). ↑
Arland J. Hultgren, The Parables of Jesus: A Commentary 80 (2002). ↑
Jean Hampton, Forgiveness, Resentment and Hatred, in Forgiveness and Mercy, supra note 131, at 87 (“This might be the first step towards coming to like himself again.”). ↑
Kubo and the Two Strings (Laika Films 2016). ↑
Id. at 1:29:02. ↑
Id. at 1:29:19. ↑
Infra notes 299–301 and accompanying text (discussing libertarian-paternal “nudges”). ↑
Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry 15 (2003); NYU Center on the Administration of Criminal Law, Disrupting the Cycle: Reimagining the Prosecutor’s Role in Reentry: A Guide to Best Practices 44 (2017). ↑
Jean Hampton, The Retributive Idea, in Forgiveness and Mercy, supra note 131, at 111, 151. ↑
Martha Minow, When Should Law Forgive? 153 (2019). ↑
See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1176, 1179 (1989) (“It is this dichotomy between ‘general rule of law’ and ‘personal discretion to do justice’ that I wish to explore . . . There are times when even a bad rule is better than no rule at all.”); David Dolinko, Some Naive Thoughts About Justice and Mercy, 4 Ohio St. J. Crim. L. 349, 349–51 (describing mercy as infliction of less punishment than deserved and recognizing the argument that “a deliberate departure from the requirements of justice [may be] an injustice”); Jeffrie G. Murphy, Mercy and Legal Justice, in Forgiveness and Mercy, supra note 131, at 167–70 (“If mercy requires a tempering of justice, then there is a sense in which mercy may require a departure from justice.”); Minow, supra note 279, at 129 (“Forgiveness judgments must always consider the jeopardy to the rule of law and to the fair treatment of others who obey the rules.”). ↑
Bowers, supra note 10, at 1673, 1680–81 (discussing mercy’s relationship to justice and treating “like cases alike”); Bowers, supra note 36, at 135–37 (responding to rule-of-law objections to leniency). ↑
Jeffrie G. Murphy, Mercy and Legal Justice, in Forgiveness and Mercy, supra note 131, at 172 & n.7 (arguing that a “sophisticated theory” of justice is not “overrestricted and simplistic,” but rather remains flexible enough to account for “morally relevant differences”); infra notes 287–98 and accompanying text (discussing “normative guilt and innocence”). ↑
Bibas, supra note 177, at 97; see also Minow, supra note 279, at 142 (“The legal tools of forgiveness can themselves be abused, but that should not be a reason for less forgiveness in the law. Instead, it should be a reason for developing rigorous, reasoned analysis about when forgiveness is and is not warranted.”); infra notes 393–411 and accompanying text (discussing the objection of “undeserved windfall”). ↑
Supra notes 78–85 and accompanying text (discussing contested concepts of disorder and quality of life). ↑
Supra note 146 and accompanying text. ↑
Infra notes 381–90 and accompanying text; cf. Minow, supra note 279, at 146, 153 (noting that forgiveness may be a means to use “a wider lens” and “acknowledge larger social failures to prevent misery [and] restrain power”). ↑
Nussbaum, supra note 251, at 85–86 (arguing complete justice requires legal justice tempered by equity, and recognizing the “close connection between equitable judgment—judgment that attends to the particulars—and mercy”); Bowers, supra note 10, at 1672, 1678–79 (“Complete justice demands both the simple justice that arises from fair and virtuous treatment and the legal justice that arises from the application of legal rules . . . Roughly, normative innocence is equivalent to a lack of blameworthiness, . . . [which] relies upon particularized exercise of practical intuition and intelligence, not on formal legal designations . . . [I]t demands a separate (and contextualized) evaluation.”); see also Eric L. Muller, The Virtue of Mercy in Criminal Sentencing, 24 Seton Hall L. Rev. 288, 343 (1993) (“[M]ercy is neither a redundancy of justice nor an indefensible deviation from justice. Instead, . . . mercy is a guarantor of justice.”); C.S. Lewis, God in the Dock: Essays on Theology and Ethics 294 (Walter Hooper ed., 1970) (“Mercy, detached from Justice, grows unmerciful. That is the important paradox. As there are plants which will flourish only in mountain soil, so it appears that Mercy will flower only when it grows in the crannies of the rock of Justice.”). ↑
Jeffrie G. Murphy, Forgiveness and Resentment, in Forgiveness and Mercy, supra note 131, at 26.; see also Jeffrie G. Murphy, Mercy and Legal Justice, in Forgiveness and Mercy, supra note 131, at 162, 171, 180–81 (endorsing “individuation” as “a basic demand of justice,” and describing mercy as a “free gift” whether “acted on or not”); see also Ewing, supra note 28, at 316; cf. John Tasioulas, Mercy, 103 Proc. Aristotelian Soc. 101, 117–18, 122 (2003) (observing that not “taking . . . extenuating circumstances into account is unduly harsh”). ↑
Jeffrie G. Murphy, Forgiveness and Resentment, in Forgiveness and Mercy, supra note 131, at 27–28; see also Stephanos Bibas, Forgiveness in Criminal Procedure, 4 Ohio State J. Crim. L. 329, 333 n.14 (defending exercises of “humane compassion” in criminal justice). ↑
Bowers, supra note 36, at 157–60 (critiquing the special role played by formalism in criminal justice). ↑
Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 Harv. L. Rev. 1214, 1242–43 (2010) (defending the notion of “treating like cases differently . . . because we . . . have differing opinions . . . of what constitutes right treatment”); David A. Strauss, Must Like Cases Be Treated Alike? 12 (U. Chi. Law Sch. Pub. L. & Legal Theory Working Paper, Paper No. 24, 2002) (arguing that, rather than measuring whether like cases are treated alike according to application of legal rules, the justice system could measure according to “morally relevant differences” of cases); Bowers, supra note 10, at 1674 (“[A] contextualized approach to criminal justice necessarily demands more than just a rigid application of legal rules pursuant to formal designations. It demands an evaluation of relative blameworthiness to ensure that equitably distinct cases are recognized as such, even if those cases happen to be legally identical under insufficiently discriminating statutes.”). ↑
Jeffries, supra note 58, at 201, 212; see also Bowers, supra note 36, at 193; Minow, supra note 279, at 146 (“Promoting legal forgiveness . . . may jeopardize the predictability, reliability, and equal treatment sought by the rule of law.”). ↑
Bowers, supra note 36, at 144–45; Bowers, supra note 251, at 988–89. ↑
Supra Section I.B. ↑
Lafler v. Cooper, 566 U.S. 156, 185 (2012) (Scalia, J., dissenting). ↑
Supra notes 86–112 and accompanying text (discussing large role played by discretion in quality-of-life enforcement and adjudication). ↑
Scalia, supra note 280, at 1175. ↑
In any event, leniency is a special case. Certain rule-of-law concerns—for instance, the concept of notice—are simply not as pressing when it comes to mercy, as compared to punishment. According to Meir Dan-Cohen: “[T]he rule of law allegedly promotes liberty or autonomy by increasing predictability. But the need for security of individual expectations is not a great obstacle . . . when decision rules are more lenient than conduct rules would lead people to expect. In such cases no one is likely to complain of frustrated expectations.” Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, in Criminal Law Conversations, supra note 31, at 3, 10–11 (2011); see also Anne M. Coughlin, Of Decision Rules and Conduct Rules, or Doing the Police in Different Voices, in Criminal Law Conversations, supra note 31, at 15, 16 (2011) (“What does the lawbreaker have to whine about? The fact that she thought she was going to be punished . . . ? That would be goofy, to say the very least.”). In other words, the rule of law tolerates pleasant surprises. Bowers, supra note 36, at 136, 147–48, 160 (“[P]ositive legality is not offended by pleasant surprises, and an exception that tends toward leniency produces only a pleasant surprise. . . . In other words, the rule of law abides pleasant surprises because such surprises do not affect the individual’s opportunities to plan conduct in the shadow of law.”). ↑
Richard H. Thaler & Cass R. Sunstein, Libertarian Paternalism, 93 Am. Econ. Rev. 175–76 (2003) (“If no coercion is involved, we think that some types of paternalism should be acceptable to even the most ardent libertarian. . . . [I]n some cases individuals make inferior choices, choices that they would change if they had complete information, unlimited cognitive abilities, and no lack of willpower. . . . [P]lanners are forced to make some design choices.”); Michael Louis Corrado, Behavioral Economics, Neurophysiology, Addiction and the Law 35 (UNC Legal Stud., Research Paper No. 892,007, 2010) (“[I]f the behavioral economist is right we might arrange choices so that people can get what they want for the long run without our making the choice for them.”); cf. Bowers, supra note 150, at 790, 830–33 (describing a way to restructure drug courts around carrots, rather than sticks, as a means to “provide something akin to a ‘libertarian-paternal’ nudge in the right direction for the addicted ex-convict who found himself ready for treatment but who still required some help to get and to keep clean”). ↑
Minow, supra note 279, at 160 (quoting Katie J.M. Baker: “In restorative justice, . . . [the] emphasis is on repairing and preventing harm, not indefinite, often ineffective punishment”); see, e.g., Kony Kim, From Adversarial Legalism to Collaborative Problem-Solving: A Pragmatic Turn in American Criminal Justice 20–25 (examining the Red Hook Community Justice Center in Brooklyn, New York). ↑
Karakatsanis, supra note 34, at 95 (“[M]aking whole the many survivors of systemic government atrocities is entirely absent from broader ‘criminal justice reform’ discourse.”); cf. supra notes 147–64 and accompanying text (critiquing the scope of internal criminal-legal “reformist” reforms, like drug courts). ↑
Richard Gonzales, To Reduce Gun Violence, Potential Offenders Offered Support and Cash, NPR (Mar. 28, 2016), https://www.npr.org/2016/03/28/472138377/to-reduce-gun-violence-potential-offenders-offered-support-and-cash [https://perma.cc/J2WM-AA2T]. ↑
Stephanie Pagones, New York City Gifting Alleged Criminals Baseball Tickets, Gift Cards as Part of $12M Perk Program, Fox Bus. (Nov. 8, 2019), https://www.foxbusiness.com/money/new-york-city-gifting-alleged-criminals-baseball-tickets-gift-cards-as-part-of-12m-perk-program [https://perma.cc/8B7N-SATG]. I was a Reporter for the Uniform Law Commission’s recently adopted “Pretrial Release and Detention Act.” We included, in our proposed statute, a similar set of provisions that would require courts to consider whether “practical assistance” or “supportive service” could effectively manage release risks. Uniform Law Commission, Pretrial Release and Detention Act, § 305 (adopted July 15, 2020). ↑
Douglas B. Marlowe, Behavior Modification 101 for Drug Courts: Making the Most of Incentives and Sanctions 3 (2012); see also supra notes 150–64 and accompanying text (discussing drug courts). ↑
Vivian Vásquez Irizarry, Gretchen Hildebran & Julia Steele Allen, Decade of Fire, PBS (Nov. 4, 2019), https://www.pbs.org/independentlens/documentaries/decade-of-fire/ [https://perma.cc/S5K9-NV4R]. ↑
Soraya Nadia McDonald, Out of the Chaos, a Beat: ‘Rubble Kings’ Explains How Gang Violence Gave Way to the Creation of Hip-Hop, Wash. Post (June 25, 2015), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/06/25/out-of-the-chaos-a-beat-rubble-kings-explains-how-gang-violence-gave-way-to-the-creation-of-hip-hop/ [https://perma.cc/Q5GE-RSAZ]; Jeff Chang, Can’t Stop, Won’t Stop: A History of the Hip-Hop Generation 60 (2005). ↑
Chang, supra note 306, at 80. ↑
Cf. Karakatsanis, supra note 34, at 32 (“[A] variety of other alternatives to human caging exist . . . education, employment, companionship, after-school art and theater programs, medical and mental health care, addiction treatment, and stable housing, to name a few.”). ↑
Maki Becker, The War on Drugs Hit Them Hard, So Oakland Is Saving Them a Spot in the Pot Trade, Buff. News (May 5, 2019), https://buffalonews.com/news/local/the-war-on-drugs-hit-them-hard-so-oakland-is-saving-them-a-spot-in/article_d0e501f1-b2bb-550c-a5dd-fb4fb25ed92a.html [https://perma.cc/5FBE-T9JF] (drawing an analogy to reparations); Max Blau, Legal Pot Is Notoriously White. Oakland Is Changing That., Politico (Mar. 27, 2018), https://www.politico.com/magazine/story/2018/03/27/oakland-legal-cannabis-hood-incubator-217657/ [https://perma.cc/4ATX-E48W]. ↑
Becker, supra note 309. In addition to $3 million in interest-free loans, the city is looking to provide commercial kitchen space for edible-cannabis processing. Id. ↑
Blau, supra note 309 (noting that, under the program, Oakland set aside at least half the permits “for residents who had been targets of the war on drugs”). ↑
Becker, supra note 309 (“It came down to this: White people were being allowed to sell and smoke marijuana—even getting rich off it—while African Americans were getting arrested.”); Blau, supra note 309 (describing one equity participant for whom “cannabis suppressed her life” but “now, cannabis will uplift her family’s life”); Karakatsanis, supra note 34, at 96–97 (describing “[p]olicies to reserve profitable marijuana business licenses to people with prior marijuana convictions” as meaningful radical reform and a “reinvestment” effort designed to promote “community-based wellness”). ↑
Blau, supra note 309 (quoting a founder of the Hood Incubator that “[i]t’s there to help those most impacted by the war on drugs”). ↑
Supra notes 269–79 and accompanying text (discussing the Parable of the Lost Son as a tale of harm-reduction and restorative justice). ↑
Ellen M. Weber, Failure of Physicians To Prescribe Pharmacotherapies for Addiction: Regulatory Restrictions and Physician Resistance, 13 J. Health Care L. & Pol’y 49, 56 (2010) (“[T]he medical community viewed addiction as a medical problem, and physicians prescribed opioid medications for the care of addicted patients without legal restrictions.”); David T. Courtwright, The Hidden Epidemic: Opiate Addiction and Cocaine Use in the South, 1860–1920, 49 J.S. Hist. 57, 71–72 (1983) (noting that as early as 1870, medical professionals began to conceive of addiction as a disease as opposed to a moral failing, and they responded to the epidemic by treating and ultimately tracking addicts). ↑
Hari, supra note 183, at 33–34 (quoting a contemporary physician that “the doctor knows just what should be done . . . that he has but to write a few words on the prescription blank that lies at his elbow, and the patient . . . will receive the remedy that would restore him miraculously to a semblance of normality”); id. at 37 (“[D]octors, vets, and dentists . . . [gave] out these drugs as they saw fit . . . addicts [were] dealt with compassionately in this way.”). See generally Henry Smith Williams, Drug Addicts Are Human Beings 14 (1938) (recounting the rise to prominence of the prohibitive approach towards drug-use). ↑
See, e.g., Edward Huntington Williams, Negro Cocaine ‘Fiends’ Are New Southern Menace, N.Y. Times, Feb. 8, 1914, at 12 (warning in racist terms of the purported dangers presented by “cocaine-crazed negroes”); Hamilton Wright, Report on the International Opium Commission and on the Opium Problem as Seen Within the United States and Its Possessions, S. Doc. No. 61-377, at 49–50 (2d Sess. 1910); Cocaine Sniffers, N.Y. Daily Trib., June 21, 1903, at 11 (describing in racist terms the threats presented by a rise in “cocaine sniffing”); see also David F. Musto, The American Disease: Origins of Narcotic Control 7 (3d ed. 1999), (explaining that “fantasies” about super-human strength resulting from cocaine use “characterized white fear, not the reality of cocaine’s effects”); Courtwright, supra note 315, at 70–71 (describing the “supercharged racial atmosphere” and “exaggerated reactions” of the white southern power structure); How Did We Get Here?, Economist, July 28, 2001 (A Survey of Illegal Drugs), at 4 (describing racist early-twentieth century perception of “drug-crazed, sex-mad negroes”). ↑
Courtwright, supra note 315, at 57; Hari, supra note 183, at 36. ↑
Hari, supra note 183, at 37. ↑
Musto, supra note 317, at 151; Hari, supra note 183, at 37; Courtwright, supra note 315, at 57–62; Weber, supra note 315, at 59 (“[F]ederal and state health officials and local law enforcement, beginning around 1912, created maintenance clinics in a dozen states that would prescribe medication in an effort to prevent suffering related to addiction and wean individuals from their drug use through the gradual reduction of dosage.”). ↑
Courtwright, supra note 315, at 60–62 (analyzing the data and observing that the clinics were “designed to supply narcotics to, as well as to keep track of, addicts”). ↑
Musto, supra note 317, at 151, 156–78. ↑
Hari, supra note 183, at 37. ↑
Thomas M. Quinn & Gerald T. McLaughlin, The Evolution of Federal Drug Control Legislation, 22 Cath. U. L. Rev. 586, 594–95 (1973) (“[L]aw enforcement officials soon began to move to curtail the medical profession’s freedom to prescribe narcotics in the treatment of addicts.”). ↑
Linder v. United States, 268 U.S. 5, 18 (1925). ↑
Harrison Act of 1914, Pub. L. No. 63-223, ch. 1, 38 Stat. 785, 785 (1914) (repealed 1970). Compare Linder, 268 U.S. at 18 (“[W]e cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed . . . in the ordinary court and in good faith . . . morphine or cocaine for relief of conditions incident to addiction.”), with United States v. Behrman, 258 U.S. 280, 288–89 (1922) (holding that prescribing drugs for an addict was a crime regardless of the physician’s intent in the matter), and Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920) (holding that a physician’s lawful prescribing authority did not include “a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug”), and Webb v. United States, 249 U.S. 96, 99–100 (1919) (“[T]o call such an order for the use of morphine a physician’s prescription would be so plain a perversion of meaning that no discussion of the subject is required.”). ↑
Weber, supra note 315, at 56. ↑
Id. at 60. ↑
Quinn & McLaughlin, supra note 324, at 596–97 (“[T]he addict could no longer turn to the medical profession for help: he was forced to turn to a new source of supply—the growing illicit drug market.” (quoting Rufus King, The Drug Hang-Up 43 (1972))); see also id. at 595 (“The unfortunate consequence of this policy was to drive from the field of drug treatment not only the unethical ‘script doctor’ but the legitimate doctor as well.”). ↑
Hari, supra note 183, at 200–02; Matthew Power, The Alleys of Vancouver, Slate (Feb. 3, 2010), https://slate.com/news-and-politics/2010/02/the-alleys-of-vancouver.html [https://perma.cc/3PYW-7ZTF]. ↑
See Matthew Power, Welcome to Insite, Slate (Feb. 1, 2010), https://slate.com/news-and-politics/2010/02/welcome-to-insite.html [https://perma.cc/7A2S-QU9R]. See generally Richard C. Boldt, Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom, 62 S.C. L. Rev. 261, 348 (2010) (describing supervised injection facilities as potentially “a pragmatic call for balance and for evidence-based decisionmaking”). ↑
JoNel Aleccia, As Seattle Eyes Supervised Drug-Injection Sites, Is Vancouver a Good Model?, Seattle Times (Nov. 30, 2016), https://www.seattletimes.com/seattle-news/health/is-vancouvers-safe-drug-use-site-a-good-model-for-seattle/ [https://perma.cc/58S9-KB24]; see also Hari, supra note 183, at 203 (noting sharp drop in drug-related fatalities in British Columbia as a whole); Robert Matas, B.C. Drug Deaths Hit a Low Not Seen in Years, Globe & Mail (Dec. 9, 2008), https://www.theglobeandmail.com/news/national/bc-drug-deaths-hit-a-low-not-seen-in-years/article1067082/ [https://perma.cc/7VU9-YZMQ] (same). See generally Att’y Gen. of Can. v. PHS Cmty. Servs. Soc’y, [2011] 3 S.C.R. 134, 151 (Can.) (describing the impacts of Vancouver activism and reform). ↑
Evan Wood, et al., Changes in Public Order After the Opening of a Medically Supervised Safer Injecting Facility for Illicit Injection Drug Users, 171 CMAJ 731, 733 (2004). Between 1996 and 2006, life expectancy in the Downtown Eastside rose by several years. Sam Cooper, Life-Expectancy Jump Astounds, Province (Vancouver), Sept. 7, 2012, at A3. ↑
German Lopez, The Case for Prescription Heroin: Vancouver Gives Heroin to People Suffering from Addiction—and It Works, Vox (June 12, 2017), https://www.vox.com/policy-and-politics/2017/6/12/15301458/canada-prescription-heroin-opioid-addiction [https://perma.cc/L7RQ-T9X9]. ↑
Hari, supra note 183, at 206, 209–10. ↑
Linnet Myers, Europe Finds U.S Drug War Lacking in Results, Chi. Trib., Nov. 2, 1995, at SW1. ↑
Hari, supra note 183, at 218–19. See generally John Strang, Teodora Gorshkova & Nicola Metrebian, EMCDDA Insights: New Heroin-Assisted Treatment 11, 13 (2012) (observing that, in various European countries, supervised injectable heroin treatment, though more expensive than optimized oral methadone treatment, led to significant societal savings). ↑
Gaëlle Faure, Why Doctors Are Giving Heroin to Heroin Addicts, Time (Sept. 28, 2009), http://content.time.com/time/health/article/0,8599,1926160,00.html [https://perma.cc/G2U3-WH8H]. ↑
Alex Kreit, Controlled Substances: Crime, Regulation, and Policy 740 (2013). ↑
Lauren Frayer, In Portugal, Drug Use Is Treated as a Medical Issue, Not a Crime, NPR (Apr. 18, 2017), https://www.npr.org/sections/parallels/2017/04/18/524380027/in-portugal-drug-use-is-treated-as-a-medical-issue-not-a-crime [https://perma.cc/B7S8-AW2X]. ↑
Id. ↑
Nicholas Kristof, How to Win a War on Drugs, N.Y. Times, Sept. 24, 2017 (Sunday Review), at 1; see also Hari, supra note 183, at 249–50, 268 (noting that the number of addicts, incidents of overdose, and the proportion of people contracting HIV from drug use have fallen in Portugal after the decriminalization); Caitlin Elizabeth Hughes & Alex Stevens, What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?, 50 Brit. J. Criminology 999, 1014–15 (2010) (finding that after decriminalization, the number of drug-related deaths, young people becoming dependent on illicit drugs, and drug users diagnosed with HIV and AIDS in Portugal has decreased); Christopher Ingraham, Why Hardly Anyone Dies from a Drug Overdose in Portugal, Wash. Post (June 5, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/06/05/why-hardly-anyone-dies-from-a-drug-overdose-in-portugal/ [https://perma.cc/8VEQ-LPYQ] (same); Frayer, supra note 340 (same). ↑
Kristof, supra note 342. Other countries, like Uruguay and the Netherlands, have undertaken similar decriminalization reforms with promising results. Hari, supra note 183, at 264–73; Shirley Haasnoot, Opinion, Dutch Drug Policy, Pragmatic as Ever, Guardian (Jan. 3, 2013), https://www.theguardian.com/commentisfree/2013/jan/03/dutch-drug-policy-pragmatic. ↑
Lopez, supra note 334; Bowers & Abrahamson, supra note 14, at 788–89; cf. Kohler-Hausmann, supra note 5, at 144–82 (discussing criminal-legal “marks”). ↑
Bowers & Abrahamson, supra note 14, at 801; infra notes 99–109 and accompanying text (discussing “downstream consequences” of arrest, charge, conviction, and punishment); Denis Ribeaud, Long Term Impacts of the Swiss Heroin Prescription Trials on Crime of Treated Heroin Users, 34 J. Drug Issues 163, 173 (noting 55% and 75% reduction in vehicle thefts among participants in the first and fourth years of treatment, respectively); Hari, supra note 183, at 221 (noting drop in HIV infections caused by injection drug use from 68% to 5%); Joanne Csete & Peter J. Grob, Switzerland, HIV and the Power of Pragmatism: Lessons for Drug Policy Development, 23 Int’l J. Drug Pol’y 82, 84 (2012) (noting drop in hepatitis infections caused by injection drug use from 51% to 10%); cf. Karakatsanis, supra note 34, at 66 (“The drug war cost more than a trillion dollars, tens of millions of arrests, hundreds of millions of police stops, tens of millions of years in prison, tens of millions of lost jobs and educations and homes . . . .”). ↑
For instance, a study published in The Lancet found that the majority of participants in Switzerland’s addiction-maintenance clinics were able to pivot eventually to methadone or abstinence programs. Wim Weber, Heroin Prescription for Addicts in Switzerland Improves Quality of Life, 356 Lancet 1177, 1177 (2000); Hari, supra note 183, at 222 (citing studies showing that in Switzerland “[t]he number of addicts dying every year fell dramatically”); cf. Lopez, supra note 334 (describing clinics that provide social services); Karakatsanis, supra note 34, at 32 (“[A] mountain of evidence suggests that the punishment approach to drugs has actually increased drug use and the harms associated with it . . . .”); Agan, Doleac & Harvey, supra note 71, at 5–6, 37 (finding that not prosecuting marginal nonviolent misdemeanor defendants “reduces the likelihood of a new misdemeanor complaint by 24 percentage points . . . [and] a new felony complaint by 8 percentage points,” and speculating that the economic, social, and stigmatic consequences of criminal justice involvement explain the differences in recidivism rates); supra notes 212–16 and accompanying text (discussing manner by which social services may counteract the criminogenic aspects of conventional criminal legalism, and citing sources for the proposition that harm-reduction, safe-sex measures have not increased instances of sex). ↑
Supra notes 118–23, 222–28, 247–48 and accompanying text. ↑
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897) (“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict . . . .”); see, e.g., N.Y. Penal Law § 145.00 (McKinney 2021) (defining “criminal mischief,” inter alia, as “[i]ntentionally damag[ing] property of another”); N.Y. Penal Law § 140.10 (McKinney 2021) (defining “criminal trespass,” inter alia, as “enter[ing] . . . real property . . . which is fenced or otherwise enclosed in a manner designed to exclude intruders”). ↑
See supra Part III. ↑
See supra Part III (describing and championing harm reduction); see also The Purge (Universal Pictures 2013) (telling narrative of alternate America in which day-to-day crime is minimized by making all crimes legal for twelve hours annually); cf. infra note 442 and accompanying text (discussing willingness of even prison abolitionists to incapacitate the “dangerous few”). ↑
Supra Part I. ↑
Supra Section I.A. (discussing undefined nature of the concept of disorder and corresponding quality-of-life offenses). ↑
With respect to possession of firearms, I could be convinced otherwise, particularly because enforcement of weapons offenses potentially produces distributive and racial inequities. Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2173 (2016) (“[R]ace- and class-based critiques . . . concerns about police and prosecutorial power . . . worries about the social and economic costs of mass incarceration . . . the same issues persist in an area—possessory gun crime—that receives much less criticism.”). ↑
Supra and infra notes 83, 110–11, 113, 170–71, 192, 402 and accompanying text (discussing intersection between order-maintenance enforcement and poverty); see, e.g., Stolper & Jones, supra note 138, at 24 (describing turnstile hopping as “an essential crime of poverty”); Parascandola, et al., supra note 140 (“Most people who jump the turnstiles are doing it because it’s a [sic] economic hardship.”); Vincent Barone, Brooklyn Turnstile Jumping Arrests Target Poor African-Americans: Report (Oct. 16, 2017) (“This is basically a crime of poverty.”), https://www.amny.com/transit/brooklyn-turnstile-jumping-arrests-target-poor-african-americans-report-1-14490216/ [https://perma.cc/5X7M-JFS6]; cf. Eduardo M. Penalver & Sonia Katyal, Property Outlaws, 155 U. Pa. L. Rev. 1095, 1172 (2007) (endorsing situational excuse for economic necessity). ↑
Lawyers and activists have opposed driver’s license revocation laws on precisely these grounds. See, e.g., Richard A. Oppel, Jr., Being Poor Can Mean Losing a Driver’s License. Not Anymore in Tennessee., N.Y. Times (July 4, 2018), https://www.nytimes.com/2018/07/04/us/drivers-license-tennessee.html [https://perma.cc/S3CB-YR24] (describing litigation as “a major victory for advocates of the poor who have targeted license revocation laws as some of the worst examples of statutes that effectively criminalize poverty”); Vivian Wang, Ticket to Nowhere: The Hidden Cost of Driver’s License Suspensions, Milwaukee J. Sentinel (Aug. 15, 2015), http://archive.jsonline.com/news/milwaukee/ticket-to-nowhere-the-hidden-cost-of-drivers-license-suspensions-b99547649z1-321972931.html [https://perma.cc/RPX3-38Z9]. ↑
Cf. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269, 349–50 (1996) (describing the offender who “behaved virtuously, albeit lawlessly”). ↑
Frankfurt, supra note 235, at 5; see also Koppelman, supra note 235, at 216; supra note 235 and accompanying text (discussing “volitional necessity”). ↑
Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1263 (1994). ↑
See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, No. 19-267, slip op. at 2, 21 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp. Opportunity Comm’n, 565 U.S. 171, 187–88 (2012); Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (Nov. 16, 1993). ↑
Eisgruber & Sager, supra note 358, at 1263. ↑
Koppelman, supra note 235, at 216, 234. ↑
Id. at 234 (internal quotation marks omitted). ↑
Eisgruber & Sager, supra note 358, at 1255, 1262, 1286 (urging “parity for religious belief, not privilege”); Micah Schwartzman, What If Religion Is Not Special, 79 U. Chi. L. Rev. 1351, 1353, 1426 (2012) (“The problem . . . is that religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment. . . . As a normative matter, religion is not special. . . . [R]eligious views, at least as traditionally conceived, cannot easily be distinguished from comprehensive secular doctrines on epistemic or psychological grounds.”). ↑
Eisgruber & Sager, supra note 358, at 1286. ↑
Amy Gutmann, Identity in Democracy 151–91 (2003) (arguing against singling out religion for special treatment and defending legal exemptions for a wider range of claims of conscience). ↑
John H. Garvey, Free Exercise and the Values of Religious Liberty, 18 Conn. L. Rev. 779 (1986). ↑
Id. at 798, 800 (“I think religion is a lot like insanity. There are two aspects to the parallel, just as there are two aspects to the most commonly used test for insanity. The first is a cognitive aspect, which concerns defects in practical reasoning; the second is a volitional aspect, which concerns the ability to conform one’s conduct to legal norms one knows to be binding.”); see, e.g., Model Penal Code § 4.01 (“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality . . . of his conduct or to conform his conduct to the requirements of law.”). ↑
See, e.g., Julia Cameron, The Artist’s Way: A Spiritual Path to Higher Creativity, at xi–xiii (1992). ↑
William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 320–21 & n.21(1991) (arguing that “bonds of ethnicity, interpersonal relationships, and social and political relationships, as well as religion may be, and are, integral to an individual’s self-identity”); see also Camille Lannert, The Perpetuation of Graffiti Art Subculture, 1 Butler J. Undergraduate Res. 47, 51 (2015) (“On the most primitive level, graffiti art is an individual’s outlet for self-expression, an outlet perceived as suppressed or blocked by society at large. For the graffiti artist, self-expression is central to the construction and maintenance of his or her identity.”). ↑
California Love Scared Straight, 99% Invisible, at 16:02 (Aug. 4, 2020), https://99percentinvisible.org/episode/california-love-scared-straight/ [https://perma.cc/2VJ8-NLVN]. ↑
Michael A. Gonzales, The Holy House of Hip-Hop, N.Y. Mag. (Sept. 22, 2008), https://nymag.com/anniversary/40th/50665/ (“[T]he blackout that year spawned a whole new generation. . . . ‘During the looting, everybody stole turntables and stuff. Every electronics store imaginable got hit. Every record store. That sprung a whole new set of D.J.’s.’” (quoting Grandmaster Caz)). ↑
Julia Jacobs, The ‘Black Lives Matter’ Street Art That Contains Multitudes, N.Y. Times (July 16, 2020), https://www.nytimes.com/2020/07/16/arts/design/black-lives-matter-murals-new-york.html [https://perma.cc/5BYL-4D6B]. On street art and political expression, see generally Lindsay Bates, Bombing, Tagging, Writing: An Analysis of the Significance of Graffiti and Street Art (2014) (Master’s Thesis, University of Pennsylvania) (on file with the University of Pennsylvania libraries); Joe Austin, Taking the Train: How Graffiti Art Became an Urban Crisis in New York City 6 (2001) (arguing that graffiti “writers” are underappreciated for their cultural and political contributions). Hip-Hop has long embraced street art. And Hip-Hop, in all its facets, is a powerful medium for political expression. See, e.g., Public Enemy, Night of the Living Baseheads, on It Takes a Nation of Millions to Hold Us Back (Columbia Records 1988) (“Have you forgotten that once we were brought here, we were robbed of our name, robbed of our language? We lost our religion, our culture, our god . . . and many of us, by the way we act, we even lost our minds.” (quoting Khalid Abdul Muhammad)). ↑
Malcolm Gladwell, Complexity and the Ten-Thousand-Hour Rule, New Yorker (Aug. 21, 2013) (claiming that genius is principally a product of practice). ↑
Leigh Osofsky, Who’s Naughty and Who’s Nice?—Frictions, Screening, and Tax Law Design, 61 Buff. L. Rev. 1057, 1075–77, 1076 n.63 (2013) (noting that tax compliance and noncompliance may evidence “relative ability, well-being, or need” and thereby help identify the offenders who may be more deserving of exceptions); Wojciech Kopczuk, Redistribution When Avoidance Behavior Is Heterogeneous, 81 J. Pub. Econ. 51, 53 (2000); see also George A. Akerlof, The Economics of ‘Tagging’ as Applied to the Optimal Income Tax, Welfare Programs, and Manpower Planning, 68 Am. Econ. Rev. 8, 8 (1978). ↑
Osofsky, supra note 374, at 1075–77 & n.63 (“[T]hese tags should identify groups of people who are, on average, needy. Individuals with these tags could then receive targeted benefits.”); Kopczuk, supra note 374, at 52–53. ↑
Kopczuk, supra note 374, at 53, 69 (“[I]mperfect enforcement of existing rules[] may be welfare improving[] and need not always reflect economic inefficiency of the underlying political system.”). ↑
Id. at 69 (“[O]bserve that black market activities are highly concentrated among low-income people. Their existence can be a cheap instrument of redistribution.”). ↑
Osofsky, supra note 374, at 1077. ↑
Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2221–22 (2019); Minow, supra note 279, at 157 (“Feeding the algorithms data that reflect disparate (or biased) law enforcement practices will repeat or amplify problematic practices. Rather than replacing human judgment, machine learning can push human beings to be more explicit and self-reflective about their judgments, predictions, biases, and use of discretion.”). ↑
Rodney A. Brooks & Anita M. Flynn, Fast, Cheap and Out of Control: A Robot Invasion of the Solar System, 42 J. Brit. Interplanetary Soc. 478 (1989); see also Fast, Cheap & Out of Control (American Playhouse & Errol Morris Films 1997) (documentary about Brooks). ↑
Solomon, supra note 142, at 6. ↑
Id. ↑
Id. at 28 (listing a figure of 32%). ↑
Supra notes 187–90 and accompanying text (discussing ages of different cohorts of misdemeanants in New York City). ↑
Supra notes 191–93 and accompanying text (discussing phenomenon of “aging out”). ↑
Supra note 240 and accompanying text (discussing higher levels of risk-seeking and steep and hyperbolic discounting among offenders and drug-dependent individuals). ↑
Christopher Allen Mallett, Miyuki Fukushima Tedor & Linda M. Quinn, Race/Ethnicity, Citizenship Status, and Crime Examined Through Trauma Experiences Among Young Adults in the United States, 17 J. Ethnicity Crim. Just. 110, 110–11 (2019). ↑
Massoglia & Uggen, supra note 182, at 570–71. ↑
Supra notes 315–46 and accompanying text (discussing addiction-maintenance clinics). ↑
Supra notes 299–300 and accompanying text (discussing libertarian-paternal “nudge[s]”). ↑
Osofsky, supra note 374, 1079–80 (“Good screening mechanisms separate between a group of individuals who should be screened in for a certain benefit . . . and those who should be screened out . . . [but] what matters for a screening mechanism . . . is determining what groups systematically bear the costs . . . not . . . [the] cost in a particular case.”). ↑
Robert E. Scott & William J. Stuntz, A Reply: Imperfect Bargains, Imperfect Trials, and Innocent Defendants, 101 Yale L.J. 2011, 2012 (1992) (“Prosecutors, like insurers, are charged with finding the occasional deserving claim in a sea of frauds.”). In the context of optimal tax screening, Leigh Osofsky explained: “[I]f high ability taxpayers are taxed at a higher rate when they earn high income, they can masquerade as low ability taxpayers by earning less income, which they can do by substituting leisure for work. . . . The fundamental dilemma of optimal tax theory, then, is how to meet its redistributive goal while minimizing the efficiency costs . . . .” Osofsky, supra note 374, at 1075. ↑
Osofsky, supra note 374, at 1078 (“Ordeals are costs attached to a desirable benefit.”). ↑
Bert I. Huang, Shallow Signals, 126 Harv. L Rev. 2227, 2285 (2013). ↑
Id. at 2231–32, 2234. ↑
Supra notes 169–70 and accompanying text (addressing the debate over whether broken windows policing works). ↑
Huang, supra note 394, at 2230, 2232. ↑
Supra notes 270–72 and accompanying text (discussing the “Parable of the Prodigal Son”). ↑
Supra notes 347–48 and accompanying text (discussing anecdote). ↑
Supra Part II. ↑
Cf. Huang, supra note 394, at 2237 (discussing optimal design of licensing regimes and concluding that “[t]he desirability of any strategy will turn on costs and benefits . . . the tradeoffs for any given policy”). ↑
Supra note 111 and accompanying text (detailing studies examining perceptions of illegitimacy of order-maintenance enforcement). ↑
Supra notes 42–46 and accompanying text (describing the aims of radical pragmatism). ↑
Cf. supra notes 260–65 and accompanying text (describing the “capabilities approach” as a metric for evaluating crime licenses). ↑
Supra Part I (discussing contested notions of disorder). ↑
Huang, supra note 394, at 2288 (emphasis added). ↑
4 William Blackstone, Commentaries *352 (“[B]etter that ten guilty persons escape, than that one innocent suffer.”). ↑
Bowers, supra note 36, at 202 (“The rule of lenity, the presumption of innocence, the Double Jeopardy clause—these and many other procedural protections—are all liberal devices designed to correct (and even overcorrect) for potentially arbitrary errors that could harm the individual.”); see also Peter Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1018 (1980) (discussing the liberal principle that “it is ultimately better to err in favor of nullification than against it”); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 445–46 (2012) (“Cruel and unusual punishments are expressly prohibited by the Constitution; merciful and unusual punishments are not.”). ↑
Bowers, supra note 36, at 202–03 (“[T]he costs of error extend . . . to moral arbitrariness. . . . Look no further than Blackstone’s maxim.”); Bowers, supra note 251, at 1041 (“[T]he state ought to criminalize no more conduct than necessary to promote crime control, public safety, and retributive goals . . . as Blackstone’s maxim prescribes . . . .”); see also Matt Matravers, Unreliability, Innocence, and Preventive Detention, in Criminal Law Conversations, supra note 31, at 81, 82 (“[A] situation in which someone is overburdened is worse from the point of view of justice than one in which someone carries a burden that is too light. It is worse, still, for someone for whom no burden is appropriate and yet a burden is applied.”); supra notes 287–98 and accompanying text (discussing normative guilt and innocence). Megan Stevenson and Sandy Mayson have likewise extended “Blackstone’s Ratio” beyond the context of legal guilt. Megan T. Stevenson & Sandra G. Mayson, Pretrial Detention and the Value of Liberty 46 (Feb. 16, 2021) (unpublished manuscript) (on file with author) (engaging in a “translation of the Blackstone ratio to the preventive detention context”). ↑
Supra Parts I–II. ↑
Richard Danzig, Toward the Creation of a Complementary, Decentralized System of Criminal Justice, 26 Stan. L. Rev. 1, 13 (1973) (arguing for “a blueprint for experimentation . . . at modest cost . . . designed to move from existing knowledge, empirically derived, to a scheme of larger, more coordinated experiments, and then ultimately, to a higher level of implementation”); supra notes 198–200, 380 (detailing this methodology). ↑
Infra notes 429–31 and accompanying text. ↑
Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 625–26 (1984). ↑
Id. at 641. ↑
Alon Harel, Why Law Matters 107 (2014). ↑
Dan-Cohen, supra note 413, at 634–35 (indicating that only “partial acoustic separation” is possible). ↑
Supra notes 89–90 and accompanying text (discussing discretionary enforcement of quality-of-life offenses). ↑
Huang, supra note 394, at 2236 (“I introduce a distinct class of solutions aimed at ‘prompting’ observers to take account of the possibility of permission, yet without disclosure of the status of individual actors.” (emphasis omitted)). ↑
Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107, 1108 (2000) (“Decent conceptions of democratic rule and individual liberty require, at a minimum, that discretionary judgments and actions be open to the electorate.”). On the connection between pragmatism and “democratic experimentalism,” see Dorf & Sabel, supra note 40, at 314 (arguing that pragmatism, in the form of “democratic experimentalism,” promises “to create a form of collective problem solving suited to the local diversity and volatility of problems that confound modern democracies”); Sabel, supra note 163, at 35; supra notes 40–50 and accompanying text (discussing relationship between pragmatism and democratic engagement). ↑
Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745, 1748 (2005); Danzig, supra note 411, at 4 (describing a “particular type of innovation” that is “conceptually and emotionally closely tied to . . . decentralization”); cf. Sabel, supra note 163, at 40 (discussing Dewey’s “attraction to the local”); Dorf & Sabel, supra note 40, at 315 (“[E]ffective government is first and foremost local government.”). See generally Klein, supra note 162, at 1541–42 (endorsing a federalism that “seeks to preserve local control of the criminal-justice system”); Richard C. Schragger, City Power: Urban Governance in a Global Age 5 (2016); Richard C. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 372 (2001). ↑
Heather K. Gerken, Second-Order Diversity, 118 Harv. L. Rev. 1099, 1126–27 (2005) (“The way that second-order diversity diffuses power in practice will depend on the institution in question. For some disaggregated institutions, second-order diversity frustrates the majority faction simply by disaggregating power. For others, it allows electoral minorities to ‘edit’ the law they lack the power to ‘authorize.’”). ↑
Dorf & Sabel, supra note 40, at 288, 314; see also Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. Chi. Legal F. 197, 210 (1998) (arguing that the criminal-legal system must be more responsive to affected communities where offenders and victims are “linked to [each other and to the local] majority by strong social and familial ties”); Tracey L. Meares, It’s a Question of Connections, 31 Val. U. L. Rev. 579, 588–89 (1997). ↑
T.L. Short, Peirce on Science and Philosophy, 36 Phil. Topics 259, 271 (2008); see also Sabel, supra note 163, at 43 (“[A] persistent increase in uncertainty favors the emergence of a world congenial to Dewey—a world in which mutual learning and joint problem solving give rise to a democratic community.”). On the “virtues of federalism,” see, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.”). ↑
Dorf & Sabel, supra note 40, at 288. ↑
The Andy Griffith Show (CBS television broadcast 1960–1968) (depicting town drunk, Otis Campbell); The Simpsons (Fox television broadcast 1989–2020) (depicting town drunk, Barney Gumble). ↑
Cf. Brantly Keiek, Sobering Center for People Deemed “Publicly Intoxicated” Open Near New Orleans’ French Quarter, WXXV 25 (Nov. 12, 2019), https://www.wxxv25.com/sobering-center-people-deemed-publicly-intoxicated-open-near-new-orleans-french-quarter/ [https://perma.cc/3JZ2-H848] (“The Sobering Center is a more appropriate destination than jails . . . as clients will . . . have a ‘warm handoff’ into medically supported detox or additional services if appropriate.”). ↑
Cf. Skogan, supra note 57, at 91 (“Community Policing relies upon organizational decentralization.” (emphasis omitted)). ↑
Supra notes 153–58 and accompanying text (discussing “institutional fetishism”). ↑
Bowers & Abrahamson, supra note 14, at 797–98. ↑
See, e.g., Scott Burris, Evan D. Anderson, Leo Beletsky & Corey S. Davis, Federalism, Policy Learning, and Local Innovation in Public Health: The Case of the Supervised Injection Facility, 53 St. Louis L.J. 1089, 1099 (2009) (discussing establishment of syringe exchanges as product of efforts by those who “bear the brunt of the human and financial costs associated with injection drug use and its collateral consequences”); Bowers & Abrahamson, supra note 14, at 817 (“Public health innovations typically start underground. For years . . . sterile syringes were exchanged, medical marijuana was ingested, and naloxone was distributed and injected.”). ↑
Minow, supra note 279, at 134; see also Shiffrin, supra note 291, at 1225 (“[H]ow law is understood on the street by everyday citizens may actually, and rightly, have an important influence on its ultimate judicial interpretation.”). This point obviously intersects with an extensive literature on civil disobedience. That literature is largely beyond the scope of this article, but it is, of course, an important topic that is relevant to many of the same themes that inform this project—particularly, social action and social justice. See generally Lewis Perry, Civil Disobedience: An American Tradition (2013) (tracing the origins of the notion of civil disobedience); Martin Luther King, Jr., Why We Can’t Wait (1964) (describing the manner by which civil disobedience may contribute to the nonviolent movement against racial discrimination in the United States). ↑
Supra notes 138–41 and accompanying text (describing recent farebeat crackdown). ↑
Nick Pinto, ‘Swipe It Forward’ Activists Protest NYPD Subway Arrests by Giving Out Free Rides, Village Voice (Nov. 3, 2016), https://www.villagevoice.com/2016/11/03/swipe-it-forward-activists-protest-nypd-subway-arrests-by-giving-out-free-rides/ [https://perma.cc/2WG8-VZTB]; James Ramsay, ‘Can I Get a Swipe?’ Can We Get in Trouble?, WNYC News (Feb. 12, 2018), https://www.wnyc.org/story/can-i-get-swipe-can-we-get-trouble/ [https://perma.cc/F9VX-M7Z2]. ↑
Swipe It Forward (@swipeitforward), Twitter (May 11, 2018, 10:25 PM), https://twitter.com/swipeitforward/status/995127801324896257 [https://perma.cc/UAT2-LSGJ]; Swipe It Forward (@swipeitforward), Twitter (Apr. 2, 2018, 3:51 PM), https://twitter.com/swipeitforward/status/980895528371277826. ↑
Pinto, supra note 433 (emphasis added). ↑
Id. (quoting Trujillo) (emphasis added) (describing goal to “highlight the role that fare-beating arrests have played in the application of the aggressive ‘Broken Windows’ police enforcement against minor ‘quality of life’ violations”). ↑
J. David Goodman & Jeffery C. Mays, Of 800,000 Poor New Yorkers, Only 30,000 Can Get the New Half-Priced MetroCards, N.Y. Times (Jan. 4, 2019), https://www.nytimes.com/2019/01/04/nyregion/fair-fares-metrocard-discount-nyc.html [https://perma.cc/98JJ-3JCC] (describing the program). ↑
Alexander C. Kaufman, As New York Cracks Down on Fare Evasion, Another City Weighs Free Transit, Huffington Post (Nov. 18, 2019), https://www.huffpost.com/entry/mbta-free-transit_n_5dd2e1d6e4b01f982f06b00c [https://perma.cc/PDT3-RLAL]; Beth Musgrave, Can a Bus Pass Help End Homelessness? Lexington Is About To Find Out, Lexington Herald Leader (Aug. 12, 2018), https://www.kentucky.com/latest-news/article216452400.html. An advantage of universal free transit is that it might minimize the stigma and resentment that sometimes attach to subsidies for the poor. Recently, some school districts have experimented with universal free lunch to counteract precisely these pernicious perspectives. Amy Brown & Janna Bilski, Fighting the Stigma of Free Lunch: Why Universal Free School Lunch Is Good For Students, Schools, and Families, Ford Foundation (Sept. 29, 2017), https://www.fordfoundation.org/just-matters/just-matters/posts/fighting-the-stigma-of-free-lunch-why-universal-free-school-lunch-is-good-for-students-schools-and-families/ [https://perma.cc/D58R-FSNC]. ↑
Here, I am reminded of and inspired by the many ordinary people, including some of my own students (who were inspired, in turn, by the Movement for Black Lives) to start community bail funds in an effort to take tangible radical-pragmatic steps today. See, e.g., Fundraiser by Elizabeth Fosburgh: Blue Ridge Community, https://www.gofundme.com/f/blue-ridge-bail-fund [https://perma.cc/29YY-P8BR]; Jia Tolentino, Where Bail Funds Go from Here, New Yorker (June 23, 2020), https://www.newyorker.com/news/annals-of-activism/where-bail-funds-go-from-here [https://perma.cc/4JYR-KSH6]; Hannah Giorgis, Why It Matters That So Many People Are Donating to Bail Funds, Atlantic (June 6, 2020), https://www.theatlantic.com/culture/archive/2020/06/why-sudden-popularity-bail-funds-matters/612733/ [https://perma.cc/TW23-WGGZ] (“The popularity of these donations signals a quietly radical shift in many people’s attitudes toward American policing.”). Nonprofit organizations, like The Bail Project, pursue two tracks simultaneously—first, pushing to change pretrial law to eliminate money bail and, second, paying for defendants’ release in the interim. The Bail Project, at https://bailproject.org/ [https://perma.cc/5T9P-JBVX]. Both tracks describe radical-pragmatic projects—with the latter representing a means by which activists may shift to a philosophy of assistance and support without having to convince anyone to upend the prevailing legal regime. See generally Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2757–60 (2014) (“Social movements tend to emerge initially as a local source of power and moral authority . . . that draw on local resources (networks, information, relationships, and cultural symbols) . . . linking lived experience to an imagined alternative.”). ↑
As with any valid experiment, we would want a control group, which might mean that some recidivists would get licenses while other similarly situated individuals would not. Alternatively, we could provide licenses categorically to all similarly situated individuals and then compare results chronologically with past practices. But that kind of longitudinal study entails a greater number of confounding variables. In any event, we should not be too troubled about treating like cases unalike, not only for the reasons discussed supra Section III.B, but also because a genuinely random process is particularly fair, even if it produces disparate results. Bowers, supra note 10, at 1677 (“[T]here is no persuasive reason why equal treatment must be measured according to substantive outcomes only. A justice system could honor the equality principle just as well by adopting procedures that provide roughly equivalent probabilities of receiving some favorable result.”); Vincent Chiao, Ex Ante Fairness in Criminal Law and Procedure, 15 New Crim. L. Rev. 277, 306 (2012) (arguing that “roughly equalizing chances is the principle of fair treatment underlying our capital jurisprudence”); Bernard E. Harcourt, Post-Modern Meditations on Punishment: On the Limits of Reason and the Virtue of Randomization, in Criminal Law Conversations, supra note 31, at 163, 167–70 (arguing that within reasonable ranges the criminal-legal system should “turn to the lottery” in making punishment and enforcement decisions); Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1213 (1985) (“[T]he criminal justice system . . . and the lottery are fair so long as the ex ante costs and benefits are equalized among the participants.”). Indeed, Rawls identified a fair gamble as a paradigmatic example of “pure procedural justice.” John Rawls, A Theory of Justice 74–75 (1971) (“If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.”). ↑
William Blake, Jerusalem: The Emanation of the Giant Albion 8 (1804). ↑
Butler, supra note 37, at 19; Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics (unpublished manuscript) (on file with author). ↑
At a minimum, we must frankly acknowledge our stakes, rank, and corresponding cultural biases. Consider, for instance, the refreshingly honest way Duncan Kennedy concluded his own critique of legal education by recognizing his own privileged place in the paradigm: “Maybe I’m just wrong about what it’s like out there. Maybe my preoccupation with the horrors of hierarchy is just a way to wring the last ironic drop of pleasure from my own hierarchical superiority.” Kennedy, supra note 81, at 76. ↑
Supra notes 180–81 and accompanying text (discussing the “machinery” of the criminal-legal system). ↑
Bowers, supra note 34, at 1118. ↑
Id. See generally Feeley, supra note 34, at 199–241 (famously arguing that “the process is the punishment” in lower criminal courts). ↑
Supra note 146 and accompanying text (discussing “misdemeanorland”). On the distinction between legal and normative guilt, see Bowers, supra note 10, at 1678–80. ↑
Supra notes 441–44 and accompanying text (arguing that criminal legalism is working quite effectively as a system of subordination). ↑
Alice Ristroph, Games Punishers Play, in Criminal Law Conversations, supra note 31, at 173, 174. ↑
Bernard E. Harcourt, Reply, in Criminal Law Conversations, supra note 31, at 181, 183 (quoting Friedrich Nietzsche, On the Genealogy of Morals 72 (Walter Kaufmann & R.J. Hollingdale trans., 1989)). ↑
See supra Parts I–II. ↑
Cf. supra notes 182–95, 385–90 and accompanying text (discussing the phenomenon by which many offenders “age out” from crime in early middle age). ↑
Unger, supra note 42 at 7, 49 (“To the extent we move in this direction, the facts of society and culture cease to present themselves to our consciousness as an inescapable fate.”); cf. Thomas Piketty, Capital in the Twenty-First Century 1 (2014) (explaining that it took the fallout from two World Wars and a depression to modify—albeit for only half a century—capitalist structures of wealth concentration). ↑
See, e.g., Michael Hiltzik, COVID-19 May Make Universal Basic Income More Palatable. That’s a Good Thing, L.A. Times (May 22, 2020), https://www.latimes.com/business/story/2020-05-22/covid-19-universal-basic-income. See generally The Mackinac Center, The Overton Window, https://www.mackinac.org/OvertonWindow [https://perma.cc/8899-URBR] (“The core concept is that politicians are limited in what policy ideas they can support—they generally only pursue policies that are widely accepted throughout society as legitimate policy options. These policies lie inside the Overton Window.”). ↑
Jamil Zaki, Habits of Kindness That Will Endure, Wall St. J. (Mar. 28, 2020), https://www.wsj.com/articles/habits-of-kindness-that-will-endure-11585368061 [https://perma.cc/5U3Q-QU66]. This was a theme of Barack Obama’s 2020 commencement speech to all graduating high school seniors. Barack Obama, Graduate Together (May 16, 2020), https://www.obama.org/updates/president-obamas-graduation-message-class-2020/ [https://perma.cc/68SN-AQLJ] (“This pandemic has shaken up the status quo and laid bare a lot of our country’s deep-seated problems—from massive economic inequality to ongoing racial disparities to a lack of basic health care for people who need it . . . that our society and our democracy only work when we think not just about ourselves, but about each other.”). ↑
Rebecca Solnit, A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster 3 (2010). See generally Jamil Zaki, The War for Kindness: Building Empathy in a Fractured World 6 (2019) (describing how humanity’s “darkest times expose our noblest capacities”). ↑
Solnit, supra note 456, at 6, 9. ↑
Lee Moran, Irish Priest Pens Stirring Poem About the Coronavirus Lockdown, Huffington Post (Mar. 20, 2020), https://www.huffpost.com/entry/ireland-priest-coronavirus-lockdown-poem_n_5e748a0cc5b6f5b7c541e875 [https://perma.cc/8V3L-8A36]. ↑
Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 54 (1984) (“But people do not want just to be beastly to each other. To suppose so is to ignore facts. People want freedom to pursue happiness. But they also want not to harm others or be harmed themselves. The evidence is all around us that people are often caring, supportive, loving, and altruistic, both in their family lives and in their relations with strangers.”). ↑
Unger, supra note 42, at 7–8. ↑
See Anna North, White Americans Are Finally Talking About Racism. Will It Translate Into Action?, Vox (June 11, 2020), https://www.vox.com/2020/6/11/21286642/george-floyd-protests-white-people-police-racism (discussing polls finding that the proportion of white Americans who said that police were likelier to use force against Black people had risen from 25% in 2016 to 49% in 2020); see, e.g., Stephen Collinson, Trump Turns Clock Back 155 Years with Confederacy-Inspired Election Strategy, CNN (July 7, 2020), https://www.cnn.com/2020/07/07/politics/donald-trump-politics-race-election-2020/index.html [https://perma.cc/7HSN-9D7R]. ↑
See, e.g., Philip Elliott, With the Eviction Moratorium Over and Unemployment Checks Next to Exit, Congress Is Nowhere Near a Deal, Time (July 27, 2020), https://time.com/5872273/congress-new-coronavirus-relief-package/ [https://perma.cc/UTE7-QEZU]; Niv Elis, House Democrats Include $597 Million for Police Reform in Spending Bill, Hill (July 7, 2020), https://thehill.com/policy/finance/506152-house-democrats-propose-597-million-toward-police-reform [https://perma.cc/L2NW-SYK7]. ↑
Zaki, supra note 455 (discussing possibility that the pandemic may lead us to turn away from “ruthless individualism”); see, e.g., Quint Forgey, ‘Everyone is Lying’: Trump Undercuts Public Health Officials in Fresh Attacks, Politico (July 13, 2020), https://www.politico.com/news/2020/07/13/trump-questions-public-health-experts-twitter-359388 [https://perma.cc/8FQZ-FCVR]; Jonathan J. Cooper, Arizona’s Rugged Individualism Poses Barrier to Mask Rules, Associated Press (July 19, 2020), https://apnews.com/article/virus-outbreak-us-news-ap-top-news-az-state-wire-phoenix-27afcc9ba34281ab425293a98c0726a3; Jake Sherman, Louie Gohmert, Who Refused to Wear a Mask, Tests Positive for Coronavirus, Politico (July 29, 2020), https://www.politico.com/news/2020/07/29/louis-gohmert-who-refused-to-wear-a-mask-tests-positive-for-coronavirus-386076 [https://perma.cc/2Q7Y-US6B]. ↑
Eric Zorn, ‘Cancel Culture’ Is Just a New Name for an Old and Bipartisan Impulse, Chi. Trib. (July 31, 2020), https://www.chicagotribune.com/columns/eric-zorn/ct-column-cancel-culture-nba-charlie-kirk-zorn-20200731-nbohyowc3rbkzpvxsqgv3nljpu-story.html. ↑
Rhiannon Evans, ‘Wear a Damn Mask,’ Karens and Desmond Swayne—How Face-Coverings Became Political, Grazia (July 15, 2020), https://graziadaily.co.uk/life/in-the-news/face-masks-covid-karen-jennifer-aniston/; see, e.g., Nicole Gallucci, 8 Karens and Kens Who Threw Huge Tantrums Instead of Putting on Masks, Mashable (June 29, 2020), https://mashable.com/article/karen-no-mask-videos-tantrums-coronavirus [https://perma.cc/66A3-XL6P]; Eric Bradner & Sarah Mucha, Biden Blames Trump’s “Liberate Michigan” Tweet for Plot to Kidnap Michigan Governor, CNN (Oct. 16, 2020), https://www.cnn.com/2020/10/16/politics/joe-biden-trump-whitmer-kidnapping-plot/index.html [https://perma.cc/6M5X-TYQH]; cf. Julia Marcus & Jessica Gold, Colleges Are Getting Ready to Blame Their Students, Atlantic (July 21, 2020), https://www.theatlantic.com/ideas/archive/2020/07/colleges-are-getting-ready-blame-their-students/614410/ [https://perma.cc/RK52-J7UG] (discussing the blame universities are, perhaps unfairly, placing on young people for virus spread). ↑
Cf. Peter Wehner, Republicans Own This Insurrection, Atlantic (Jan. 7, 2021), https://www.theatlantic.com/ideas/archive/2021/01/republicans-own-insurrection/617583/ [https://perma.cc/P6V2-7W3T] (arguing that many Republican officials bear some responsibility for the insurrection); cf. Elie Mystal, The People Aren’t Freedom Fighters—They’re Virus-Spreading Sociopaths, Nation (Apr. 21, 2020), https://www.thenation.com/article/economy/liberate-america-covid/ [https://perma.cc/739Z-J5NH] (criticizing those who claim liberty and individualism entitles them not to wear masks). ↑
See supra Section II.C. ↑
Simon, supra note 124, at 6–7, 100–102; Garland, supra note 132, at 131–32; supra notes 217–23 and accompanying text (discussing risk aversion, fear, crime-control governance, mass incarceration, and mass misdemeanor arrest). Likewise, this same crime-control ethos led some politicians to demand draconian penalties for those who immunized out of formal order, rather than keeping focus on the more-important, harm-reduction aim of expeditiously putting vaccine shots in arms. See, e.g., Alexandra Kelley, New York Weighs Whether to Outlaw Cutting the Line for COVID-19 Vaccine, Hill (Jan. 4, 2021), https://thehill.com/changing-america/well-being/prevention-cures/532565-new-york-to-outlaw-cutting-the-line-for-covid-19 [https://perma.cc/ZL8M-PFD2]. ↑
Marcus, supra note 220. ↑
Julia Marcus, The Fun Police Should Stand Down, Atlantic (Aug. 15, 2020), https://www.theatlantic.com/ideas/archive/2020/08/containing-the-pandemic-isnt-a-job-for-cops/615298/ [https://perma.cc/C5JW-M26W] (“In the meantime, not a single ticket was issued in Park Slope, a wealthy and predominantly white neighborhood, despite the crowds that gathered there in Prospect Park.”). ↑
Marcus, supra note 220. ↑
Id. ↑
Unger, supra note 42, at 49–50. ↑
Id. at 49 (arguing that radical pragmatism enables us to “draw the line between the alterable features of social life and the enduring character of human existence”). ↑

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