Volume 66, Fall 2014, Issue 4
WHEN THE LAW IS GUILTY: CONFRONTING THE MASS INCARCERATION CRISIS IN THE UNITED STATES?
Laura Cohen
It was not supposed to happen to Eric Campbell. The youngest child of a loving Jamaican-American family, he was doing everything right. Although his Brooklyn neighborhood could be rough, he was a good student and talented musician who earned extra money babysitting for his fourth-grade teacher’s young daughter. When Eric was fifteen, however, his mother died suddenly, leaving him and the rest of his family bereft and unanchored. Eric started hanging out in a local park at night, and it was there that everything changed. One evening, he and his best friend were recruited by an older youth to help commit a grocery store robbery. Eric was the lookout and, as he stood nervously on the street, shots rang out inside the store. The store owner had been killed, and the three boys ultimately were convicted of his murder. Eric was sentenced to serve seven years to life in the New York State prison system. After serving fourteen years of that sentence, he was released on parole shortly before his thirtieth birthday.
1986: AIDS, CRACK, & C. EVERETT KOOP
Mark Osler
Nineteen eighty six was a landmark year in the history of American public health. Two new and terrifying threats challenged the American imagination. One was Acquired Immunodeficiency Syndrome (“AIDS”); the other was crack cocaine (“crack”). By 1986, a divergence had appeared between the political reactions to these twin challenges. Whereas these issues had previously been attacked as the result of immoral choices by gay men (AIDS) and African- Americans (crack), a key difference became clear in 1986. After that point, AIDS was addressed through a systems analysis as a medical problem, while crack was still dealt with case-by-case as a problem rooted in individual moral culpability. With AIDS, the root of the problem was confronted through medical research;1 with crack it was individuals who were targeted through prosecution and incarceration.2 The success of the former and the failure of the latter offer a firm lesson about our future approach to narcotics.
This article will examine each of these crises, contrast them, and then pose a crucial question: What if we had treated crack with the problem-solving approach we applied to AIDS?
OVER-CRIMINALIZATION AND THE NEED FOR A CRIME PARADIGM
Gregory Jones
This Note examines the “issue” of over-criminalization, which is less a singular issue than it is a mountain of problems plaguing the American criminal justice system. The impetus for this note was a Congressional Over-Criminalization Task Force that began in June 2013 and just held its tenth and final hearing in July 2014, and its focus has evolved as the Task Force has delved deeper into the “issue.”
With the publication of this note likely preceding or virtually coinciding with the Task Force’s issuance of a formal report, its final foci are two: (1) to provide an overview of the plenitude of issues addressed by the Task Force’s many witnesses in a manner that highlights their interconnectedness, and (2) to frame that interconnectedness within a brief historical compendium of Anglo- American criminal law. The bulk of the Note will be dedicated to exploring those issues.
BAIL REFORM AS A MASS INCARCERATION REDUCTION TECHNIQUE
Alexander Shalom
Today’s symposium will provide plenty of opportunities for despair. The scope of the mass incarceration crisis in America is, indeed, depressing and signs of hope are few and far-between. But, one area where there is real hope for significant, meaningful change—especially in New Jersey—is pretrial justice reform. So, rather than further discouraging you, allow me to explain why I think bail reform can blunt the impact of the proliferation of mass incarceration.
A SLOW MOTION LYNCHING? THE WAR ON DRUGS, MASS INCARCERATION, DOING KIMBROUGH JUSTICE, AND A RESPONSE TO TWO THIRD CIRCUIT JUDGES
Mark W. Bennett
A federal district court judge who has sentenced more than 4000 defendants reflects on federal sentencing and its role in mass incarceration. The focus of the article is on federal sentencing in crack cocaine cases and policy disagreements with the United States Sentencing Guidelines (Guidelines) in drug trafficking cases. The article explores the U.S. Supreme Court cases in Kimbrough v. United States, United States v. Spears, and Pepper v. United States, the only U.S. Supreme Court cases that address sentencing judges’ policy disagreements with the guidelines. Ironically, or perhaps serendipitously, the author was the sentencing judge in both Spears and Pepper, where he was reversed a whopping 5 times by the U.S. Court of Appeals for the Eighth Circuit (twice by an en banc court) before both defendants’ sentencing positions were vindicated by the U.S. Supreme Court. The article takes exception to two Third Circuit judges who have argued in law review articles that federal sentencing judges should be concerned about “legislative backlash” if they sentence outside the now advisory guidelines. In the arc of the history of federal sentencing and its impact on mass incarceration, we are perched at a cresting point where the gravity of reason and our Nation’s experience with mass incarceration hopefully will pull towards greater justice in sentencing.
Rutgers University Law Review