The Paradox of Recidivism
70 Emory Law Journal __ (Forthcoming 2021)
Abstract:
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines. And three- strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending. Most of the people we lock up in the U.S.— especially those who are Black or Latino, and poor—have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.
This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one. This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition. But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.
Latinos and the Principles of Racial Demography
16 Du Bois Review: Social Science Research on Race 63 (2019)
Abstract:
U.S. federal agencies should treat Latinos as a racial or quasi-racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Survey data must rely on self-reported racial and ethnic identification. But people often identify their own race differently from how others perceive them. In order for self-reported survey data to be useful for the enforcement of antidiscrimination law, it is important that it tracks how others perceive the respondents’ race and ethnicity, not just how they see themselves. To capture racial perceptions of Latinos, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Latinos are racially perceived; and the extent to which Latinos are collectively perceived as a race. A survey format that treated Latinos as a racial group would likely be more amenable to these goals than the current format, but there are some areas, which this paper identifies, where further empirical research is needed in order to be sure.
16 Du Bois Review: Social Science Research on Race 63 (2019)
Abstract:
U.S. federal agencies should treat Latinos as a racial or quasi-racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Survey data must rely on self-reported racial and ethnic identification. But people often identify their own race differently from how others perceive them. In order for self-reported survey data to be useful for the enforcement of antidiscrimination law, it is important that it tracks how others perceive the respondents’ race and ethnicity, not just how they see themselves. To capture racial perceptions of Latinos, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Latinos are racially perceived; and the extent to which Latinos are collectively perceived as a race. A survey format that treated Latinos as a racial group would likely be more amenable to these goals than the current format, but there are some areas, which this paper identifies, where further empirical research is needed in order to be sure.
Inequality, Incentives, Criminality, and Blame
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
Oppositional Culture and Educational Opportunity
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.