The Recidivist Sentencing Discount
Working Paper (Draft Available On Request)
Abstract:
The idea that people with prior criminal convictions should be punished more severly than first-time lawbreakers convicted of otherwise similar offenses is at the root of mass incarceration in the United States. The “recidivist sentencing premium,” as this idea is sometimes called, is the basis for three-strikes, habitual offender, and career criminal laws that inflict extremely harsh penalties on repeat offenders. In states that use sentencing guidelines, prior convictions trigger, on average, a sixfold increase in the length of punishment. These laws and policies are one of the main causes of racial disparity in our prison populations.
This article is the first to show that the recidivist sentencing premium cannot be justified, and, counterintuitively, that judges and sentencing commissions should instead treat prior convictions as a presumptive mitigating factor—a Recidivist Sentencing Discount. This thesis goes against the grain of decades of legal practice and policy developments, virtually the entire scholarly literature, and centuries of social tradition. But—given the current law and policy of collateral consequences, and the social conditions they engender—it follows from a number of quite ordinary premises, and merely reveals one of the moral and legal paradoxes that decades of mass incarceration have left us with.
Latinos and the Principles of Racial Demography
__ Du Bois Review: Social Science Research on Race __ (forthcoming)
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.
__ Du Bois Review: Social Science Research on Race __ (forthcoming)
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.