A New Era in Criminal Sentencing and Incarceration

On October 20, the New York Times reported that “more than 130 police chiefs, prosecutors and sheriffs — including some of the most prominent law enforcement officials in the country” have formed a group (Law Enforcement Leaders to Reduce Crime and Incarceration) to lobby for a wide-scale reduction in the  incarceration rate.  The group wants a range of alternatives to criminal arrest, and calls for a revision of the criminal code and an end to mandatory minimum prison sentences.  Criticism for get-tough-on-crime sentencing has been gaining momentum, and a growing number of investigative reporters, law-makers, judges, civic leaders, and academics have been asking hard questions about the ethics of practices like mandatory minimum laws and solitary confinement.

Some data-driven analyses seem to suggest that incarceration has a host of counter-productive and counter-intuitive effects. The U.S. Department of Health and Human Services points to the psychological effects of incarceration. DHHS Report  Incarceration is associated with lower earning potential and a loss of connection with family and friends. Safer Foundation Report

And there has been concern for some time regarding certain features of the Federal Sentencing Guidelines that have been perceived to disproportionately and needlessly affect minority populations. For example, before the Fair Sentencing Act (FSA) was passed in 2010, a defendant faced a minimum five-year sentence if convicted of possessing at least five grams of crack. Possession of 50 grams brought a minimum of 10 years. Conviction for possession of powder cocaine resulted in far milder consequences.

Meanwhile, the deterrent effect of harsh prison sentences is being called into question.  A study by David S. Lee, Justin McCrary examining the deterrent effects of prison sentences in young people under age 18 (when sentences are relatively short) and over 18 (when sentences are relatively harsher) detected little discernable difference in the level of deterrence, leading them to conclude that severity of sentencing had little effect on the decision to commit a crime in this population. Lee & McCrary Study

Slowly, steps taken to address these concerns are bearing fruit.  A 2015 U.S. Sentencing Commission study reported that over the three years following the passage of the Fair Sentencing Act, the number of offenders sentenced to a prison term for crack-cocaine offenses dropped by half.  The commission estimated the FSA will reduce the number of prisoners by 29,653 per year. Meanwhile, Congress appears poised to do more.  Conservative Republican Senator Charles E. Grassley (Iowa) and Democrat Senator Richard J. Durbin (Illinois) are two prominent politicians who are reaching across the aisle and spearheading attempts to lessen the effects of mandatory prison sentences, increase early release for prisoners, and create new programs to prepare offenders for life after prison.  Earlier this month, the Justice Department announced one of the largest releases of federal prisoners in history.  Approximately 6,000 inmates will be released (roughly one third will be deported).  Most of those released were convicted for nonviolent drug offenses.

We are at a turning point regarding sentencing offenders.  Much of the current activity involves undoing what has been done—revisiting the question of mandatory minimums, asking tough questions about legislation that imposes disproportionate burdens on minority populations, and releasing inmates whose freedom likely poses little threat to society.  These are positive steps in the right direction, but they leave questions about how we should rebuild our criminal justice system to create one that accomplishes our goals.  This project begins by clearly identifying our objectives.

Behavioral science has an enormous role to play in this project.  A major function of the criminal justice system is encouraging positive behavior and discouraging decisions that result in harm.  There is a wealth of data that can and should speak to the best way to accomplish these ends.  In the next several posts, I will take a look at several angles of the sentencing question to propose positive steps forward.

Online CLE — When Good Intentions Go Awry: An Introduction to Behavioral Ethics in a Legal Context

PLI If you are in need of continuing legal education credit (or are otherwise interested), I will be co-presenting an upcoming seminar on Behavioral Legal Ethics on November 10, 2105, with Professor Catherine Gage O’Grady of the James E. Rogers College of Law at the University of Arizona.  The program provider, Practising Law Institute, is a leader in the field of CLE education.

Here is the link and description for anyone who might be interested:


Ethics discussions often focus narrowly on the “bad apples” who deliberately choose to evade the rules of the profession. But as decades of empirical research demonstrate, unethical behavior frequently results from a broader set of variables that can cause even well-intentioned lawyers to act contrary to their own principles. Recently dubbed “Behavioral Legal Ethics,” this area of study draws lessons from behavioral science – including social psychology, behavioral economics and neuroscience – to explore the many subtle, often unconscious, factors that influence ethical decision-making. These include, for example:

  • The power of conformity and obedience to authority
  • The role of framing in ethical deliberation
  • The slippery slope toward misbehavior
  • The pernicious influence of overconfidence and self-serving biases

Please join Professor Catherine Gage O’Grady from the University of Arizona’s James E. Roger College of Law and Professor Tigran W. Eldred from New England Law | Boston for a one-hour briefing on Behavioral Legal Ethics. Topics to be explored will include how behavioral science challenges standard conceptions of legal ethics, as well as how a behavioral approach can address misconduct in diverse practice settings. This session will be of particular interest to newly admitted lawyers, who are uniquely vulnerable to the behavioral factors that contribute to unethical behavior and, conversely, are well-suited to overcome them.

(full disclosure: the program fee is $299, which is the tuition charged by PLI for the event)

Update,  11/20/15: I thoroughly enjoyed teaching this material with Professor Catherine Gage O’Grady.  The recording of the PLI session is available at a reduced rate here.

EthicalSystems.org — The “Go To” Site for Behavioral Ethics


EthicalSystems.org, which we have discussed many times here at BLE, is a must-read for anyone interested in behavioral ethics.  Put it on your favorites list, add it to your browser, make a sticky note reminding yourself to visit often — in other words, do what you can to be a regular visitor to this site.  You won’t be sorry.

If you need more of a nudge (!), here is a sampling of three relevant recent posts from the EthicalSystems.org blog:

  1. Framing the Language of Business:  This post, which discusses Scott Killingsworth’s excellent article on the power of framing in the business context, has clear implications for the legal community.  Just as the “business as war” frame can lead to ethical lapses, Killingsworth’s article provides a sober warning against the excesses that framing “litigation as war” can produce.
  2. Testing, Testing: Drawing Conclusions From Test Environments: This post focuses on a recent work by Professor Donald Langevoort of Georgetown Law School, who was one of the first scholars to write about behavioral legal ethics (well before we had a name for it), beginning with his 1993 article, Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud.  In his recent work, Prof. Langevoort describes the state of empirical research and its application in the compliance field, but his discussion of behavioral science has wide-ranging application for virtually any area of ethical decision-making.
  3. An Executive Order Promoting Behavioral Science: This post provides a rich description of the importance of President Obama’s recent executive order mandating that federal agencies look for ways to apply the insights from behavioral science to promote public policy in executive branch decision-making.  Not that there was much doubt, but behavioral science has arrived — front and center — in policy discussions, now and for the future.

Scholarship Update

Annual ReviewProfessor Jennifer Robbennolt, whose co-authored article, Behavioral Legal Ethics, helped to inspire this blog and is a foundational source in the field, has written a new article entitled Behavioral Ethics Meets Legal Ethics, 11 Ann. Rev. Law & Soc. Sci. 6.1-6.19 (2015).  Published in advance form here (behind a pay wall), the article is a must read for anyone interested in this area of inquiry.

Here is the abstract:

Research on behavioral ethics is flourishing, providing new insight into the cognitive, situational, and social factors that influence ethical decisions. Although many common approaches to dealing with legal ethics assume that unethical behavior is a result of conscious decision making driven by economic self-interest, the psychology of behavioral ethics makes clear that ethical decision making is far more complex than bad actors making conscious decisions to act unethically for their own economic advancement. This article reviews recent work on behavioral ethics, bringing together research findings about cognitive and social factors that influence ethical decision making and focusing on those with particular application to the legal context. The ethical issues faced by lawyers provide a rich context within which to apply the findings of existing research and to conduct new research that explores both the unexceptional and unique structures and pressures on
ethical decision making in legal practice.

Testimony Before the New York Commission on Statewide Attorney Discipline

This afternoon I appeared to speak at a hearing in Buffalo held by the New York Commission on Statewide Attorney Discipline.

Chief Judge Jonathan Lippman created the Commission on Statewide Attorney Discipline to conduct a comprehensive review of the state’s attorney disciplinary system to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process.
Among the issues to be studied by the Commission are whether New York’s departmental-based system leads to regional disparities in the implementation of discipline; if conversion to a statewide system is desirable; and how to achieve dispositions more quickly in an effort to provide much-needed closure to both clients and attorneys.

Here is a slightly edited version of my written testimony. I include it here because I’m drawing on behavioral ethics in my take on how perceptions of the disciplinary process affect law students.

Chief Judge Lippman created this commission to review the system of attorney discipline in New York. This is an important task, and it brings much-needed attention to the practices and values of the legal profession. However, my experience teaching legal ethics and professional responsibility reveals a divergence between the disciplinary system in New York and how legal ethics is taught in law schools. Legal ethics casebooks pay little or no attention to the process of attorney discipline or to questions regarding disciplinary sanctions. No casebook with which I am familiar devotes more than a page or two to how attorney disciplinary systems work; a few mention the ABA Model Rules for Lawyer Disciplinary Enforcement (2002). Most casebooks I have examined mention the ABA Standards for Imposing Lawyer Sanctions (1992), but none address more than a few paragraphs to the discussion of disciplinary sanctions, how sanctions serve the different functions of punishment and deterrence, and how different sanctions are calculated.

There are several possible reasons for this neglect. For one, discussion of sanctions means that there has already been an ethical failure. Legal ethics courses generally aim to teach law students, at minimum, how to avoid disciplinary sanctions by understanding the ethical rules and applying them correctly to resolve difficult ethical problems. Disciplinary sanctions come after the ethical violation has already occurred. Discipline means that there has been a failure of ethical behavior. Legal ethics teaching hopes to prevent those failures. Casebook authors may fear that extensive treatment of sanctions amounts to suggesting that law students are likely to fail in their ethical responsibilities.

However, another reason for neglecting disciplinary sanctions in legal ethics courses may be a concern that teaching students about sanctions may contribute to disrespect for the disciplinary process and disregard of the ethical rules. Despite the explicit guidance of the Rules of Professional Conduct, what the bar and the courts choose to sanction, and what sanctions are imposed, may say more than the rules do about the real values of the profession.[1]

The Preface to the ABA Standards for Imposing Lawyer Sanctions (2002) states that the function of standards for disciplinary sanctions is deterrence.

For lawyer discipline to be truly effective, sanctions must be based on clearly developed standards. Inappropriate sanctions can undermine the goals of lawyer discipline: sanctions which are too lenient fail to adequately deter misconduct and thus lower public confidence in the profession; sanctions which are too onerous may impair confidence in the system and deter lawyers from reporting ethical violations on the part of other lawyers. Inconsistent sanctions, either within a jurisdiction or among jurisdictions, cast doubt on the efficiency and the basic fairness of all disciplinary systems.[2]

The New York Court of Appeals in Levy v. Ass’n of the Bar of the City of N.Y. agreed that deterrence, not punishment, is the principle driving disciplinary sanctions.

The proper frame of reference, of course, is the protection of the public interest, for while a disciplinary proceeding has aspects of the imposition of punishment on the attorney charged, its primary focus must be on protection of the public. Our duty in these circumstances is to impose discipline, not as punishment, but to protect the public in its reliance upon the presumed integrity and responsibility of lawyers.[3]

Whether one views deterrence or punishment as the function of sanctions, the nature of the sanctions imposed and the process by which they are imposed are important in signaling collective values. From an instrumental view, “behavior is motivated by rewards and punishments in the external environment.”[4] Under this theory, a disciplinary system of disciplinary aims to “alter[] citizens’ behavior by . . . delivering or threatening to deliver sanctions.”[5] Such a view of disciplinary sanctions would presume that especially severe ethical violations should be met with severe sanctions such as suspension or disbarment. Less egregious violations, or violations in situations where there are significant mitigating factors, should be met with less serious sanctions such as censure. However, as Professor Gillers has demonstrated,[6] there are significant variances in the degree of sanction imposed for the same type of violation among the four judicial departments. From a purely instrumental perspective, such variances are problematic because they fail to assure that severe violations will be met severely.

On the other hand, according to the procedural justice theory developed by Yale Law Professor Tom R. Tyler, people obey the law when they view it as having legitimate authority. The basis of legitimacy is procedural justice. “Legitimacy is linked to the justice of the procedures by which the police and courts implement the law.”[7] If authorities “act in ways that [are perceived] as procedurally just, their rules are viewed as more legitimate, and are more likely to be obeyed.”[8] According to this theory, it is may be less important that sanctions be harsh than that they be perceived as fair and consistent.

Under either theory—an instrumental view of punishment and deterrence, or a procedural justice theory—sanctions are significant. How disciplinary authorities respond to ethical violations exposes the real values held by the profession and by the court. Deterrence is ineffective where the disciplinary process is slow and some disciplinary committees treat violations with greater leniency than others. Procedural justice is absent where sanctions are perceived as arbitrary.

The New York Rules of Professional Conduct provide guidance in determining what kinds of actions by lawyers are acceptable and laudatory, and what actions are unacceptable and worthy of condemnation. Such rules should help lawyers make choices to resolve difficult questions of professional responsibility. When the sanctions are arbitrary and inconsistent, however, the sanctions may tell a different story than that told by the rules. The sanctions imposed by the disciplinary committees and the four departments of the Appellate Division tell us what the rules really mean.

Until recently, disciplinary sanctions in New York were rarely published. The Court’s recent mandate that attorney disciplinary records be publicly searchable is a step in the right direction. This greater transparency may, however, have the undesired result of making even more visible the arbitrary nature of the disciplinary process.

Legal ethics teachers differ on whether we should teach values, or should focus on what Judith Maute calls “safe lawyering,” or “the law of lawyering.”[9] However, even teaching “safe lawyering” necessarily teaches the bar and the court’s implicit values. Although students, like practitioners, may have little direct exposure to disciplinary actions, they pick up on the messages sent by disciplinary enforcement—or lack thereof—indirectly.

Although lawyers may not be familiar with the details of all discipline cases, some decisions are published, others are abstracted in local legal newspapers and bar magazines, and still others become the subject of gossip within the profession. Lawyers thus form impressions about whether, how often, and in what types of cases disciplinary agencies pursue sanctions. These impressions may have a substantial influence on how lawyers respond to or respect particular rules.[10]

Law students may be particularly susceptible to the undermining effect of a seemingly arbitrary disciplinary system. Students, especially in legal ethics and professional responsibility, want to know “the answer.” The Multistate Professional Responsibility Exam reinforces the view that there should be clear right and wrong answers, in legal ethics if in no other field. Law students, if they look beyond the immediate pressures of the MPRE, want to know what they must do to avoid, or minimize, disciplinary sanctions in practice.

Inconsistent and arbitrary sanctions send a message, and it is not a message of deterrence, or even a message of procedural justice: it is a message that the profession does not take legal ethics seriously. Lack of standards teaches that the rules themselves are arbitrary; that the real question is not, “what are my ethical duties,” but “what can I get away with?”

The arbitrary nature of disciplinary sanctions when teaching legal ethics based on the ABA Model Rules is magnified when we turn our attention to the disciplinary system in New York. A fragmented attorney disciplinary system that imposes different standards on lawyers based on whether their offices are downstate, upstate, or in Western New York raises questions as to why they are treated differently. University of San Diego law professor David McGowan notes that “[o]ne of the hardest things to teach students is how to deal with the sometimes significant variation in judicial reactions to similar conduct. . . . ‘Pay close attention to custom’ is helpful, and an obvious point, but I do find that students throw up their hands and tend toward nihilism when they perceive how much variation they will face.  Teaching realism without nihilism is important but tough.”[11]

Differences between sanctioning standards between states are troubling but manageable. For law students preparing to practice in New York, however, wide disparities in sanctions for the same violations depending on which part of the state one practices in may lead to a nihilistic attitude toward the very idea of ethical duties. New York’s system of disciplinary sanctions should be one worthy of respect.

[1] “Individuals look to others to figure out how to behave and to understand the relevant social norms in a situation, particularly in ambiguous circumstances. They may conform their own behavior to the behavior of others; they learn vicariously through the experiences, rewards, and punishments of others; and they engage in social comparison processes.” Jennifer K. Robbennolt, Behavioral Ethics Meets Legal Ethics, 11 Ann. Rev. Law & Soc. Sci. 6.1, 6.6 (2015).

[2] “Preface,” ABA Standards for Imposing Lawyer Sanctions (2002).

[3] Levy v. Ass’n of the Bar of N.Y., 333 N.E.2d 350, 352 (N.Y. 1975) (internal quotation marks omitted).

[4] Tom Tyler, Why People Obey the Law 21 (1990).

[5] Id.

[6] Stephen Gillers, Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public, 17 Legis. & Pub. Pol’y 485 (2014).

[7] Tyler, supra note 4, at 273.

[8] Id. at 274.

[9] Judith Maute, Remarks at the W.M. Keck Foundation Forum on the Teaching of Legal Ethics (Mar. 22, 1996), quoted in Lisa Lerman, Teaching Moral Perception and Moral Judgment in Legal Ethics Courses: A Dialogue About Goals, 39 Wm. & Mary L. Rev. 457, 461(1998).

[10] Fred C. Zacharias, The Purpose of Lawyer Discipline, 45 Wm. & Mary L. Rev. 675, 739 (2003) [“when rule violations that are visible or well-known go unsanctioned, such failure to prosecute undermines the professional standard as a credible threat. It encourages other lawyers to violate the particular standard or the codes as a whole” (citations omitted)]; id. at 727, n. 191 [“For example, the deterrent effect of a particular sanction may depend as much on how frequently or automatically the targets perceive that punishment is imposed as on the severity of the punishment”].

[11] David McGowan, Realism Without Nihilism–An Example From a Sanctions Order for Deposition Objections, Legal Ethics F. (Aug. 1, 2014, 1:33 PM), http://www.legalethicsforum.com/blog/2014/08/realism-without-nihilism-an-example-from-a-sanctions-order-for-deposition-objections.html.

Scholarship Update

WritingRobert Prentice, whose excellent online resource, Ethics Unwrapped, we have profiled here many times, is one of the leading thinkers and writers on the pedagogy of behavioral ethics.  His newest article, co-written by Minette Drumwright and Cara Biasucci, is entitled Behavioral Ethics and Teaching Ethical Decision Making.  The published version is available behind a pay wall here.  A downloadable draft version is available here.   Highly recommended!

The First (Annual?) BLE Film Festival

Verite_student_film_festival_color.psd_2To my delight, this year has turned into a festival of sorts for a wonderful set of new films about social psychology, behavioral science and ethics.  As we’ve discussed previously, Dan Ariely’s new film, (Dis)honesty: The Truth About Lies, has been released to favorable reviews (e.g., here and here).

In addition, an amazing actor, Billy Crudup (find and watch Jesus’ Son if you haven’t), is starring as Philip Zimbardo in the soon-to-be released film version of the Stanford Prison Experiment. Here’s a fascinating interview with Dr. Zimbardo about the film and his work.

Last, but certainly not least, Stanley Milgram’s famous experiments and life story have come to the silver screen in Experimenter, which premiered at the Sundance Film Festival in January (a trailer for the movie is here; review here) and is on the film festival circuit. It stars the wonderful Peter Sarsgaard as Milgram (I’ve been a big Sarsgaard fan since his recurring role on The Killing) and Winona Ryder as Milgram’s wife. When the film will be released for general viewing, I do not know – soon, I hope! (stay tuned for updates on Twitter: #experimenter).

Update 07/17/15:  MSNBC’s interview with Billy Crudup about the Stanford Prison Experiment is here.

Update: 07/27/15:  And now one more film  . . .  As the New York Times reported this weekend, the Kitty Genovese case — which has generated so much publicity over the last fifty years (and controversy about how it was reported) and made the Bystander Effect a household name — is the subject of a new film, entitled 37Here is the trailer. Stay tuned.