FRIDAY, NOVEMER 12th, 2004 (Weymouth Kirkland Courtroom)
KEYNOTE ADDRESS: 4:00-4:45 PM
Douglas Berman, Michael E. Moritz College of Law, Ohio State University
Author, Sentencing Law & Policy Blog
RECEPTION: 4:45-5:00 PM
FIRST PANEL: 5:00-6:15 PM, Public Policy Approaches
Albert Alschuler, University of Chicago Law School (Moderator)
Jens Ludwig, Georgetown Public Policy Institute
Michael Cahill, Brooklyn Law School
Frank Bowman, Indiana University School of Law -- Indianapolis
SECOND PANEL: 6:15-7:30 PM, The Economics of Punishment
John Pfaff, Northwestern University Law School (Moderator)
Nicola Persico, University of Pennsylvania (Economics)
Thomas Miles, University of Chicago Law School
Leo Katz, University of Pennsylvania Law School
SATURDAY, NOVEMBER 13th, 2004 (Room III)
THIRD PANEL: 9:00-10:15 AM, Sociological Concerns
Tracey Meares, University of Chicago Law School (Moderator)
John Hagan, Northwesstern University (Sociology and Law)
Calvin Morrill, University of California, Irvine (Sociology)
Bernard Harcourt, University of Chicago Law School
FOURTH PANEL: 10:15-11:30 AM, The Philosophical Perspective
Bernard Harcourt, University of Chicago Law School (Moderator)
Claire Finkelstein, University of Pennsylvania Law School
Heidi Hurd, College of Law, University of Illinois at Urbama-Champaign
Kyron Huigens, Benjamin N. Cardozo School of Law
LUNCH: 11:30 AM (South Green Lounge)
2004-05 EDITORIAL BOARD
Brian Hill
Editor-in-Chief
Angela Russo Todd Broberg
Executive EditorSenior Comment Editor
Mary McKinneyMeghashyam Mali
Articles EditorSteven Seem
Production EditorVanessa Countryman
Comment Editors
Kathleen Pessolano
Michael KremenakRachel Blitzer
Elizabeth GutierrezSymposium Editor
Articles Editors
Raegan Barnes
Kristy Johnson
Managing Editors
Communications Editors
STAFF
Joseph CallisterShennan Harris
Basil CherianLouis Hellebusch
John ChibbaroZubin Khambatta
Susanna COwenNabeel Khan
Sharon FairleyWilliam Mandycz
Rebecca FeldmanJennifer Marino
Richard FieldsLisa Nguyen
Matthew GuerreroDaniel Pawson
David Haendler
About The Legal Forum
The Legal Forum is a student-edited journal that focuses on a single cutting-edge legal issue every year, presenting an authoritative and timely approach to a particular topic. Volume 2005 will examine “Punishment and Crime.” Topics from recent years include “The Public and Private Faces of Family Law,” “Current Issues In Class Action Litigation,” “The Scope of Equal Protection,” “Antitrust in the Information Age,” “Toward a Rational Drug Policy,” and “Voting Rights and Elections.”
Our single-topic focus and Symposium distinguish the Legal Forum from the Law School’s other journals. Since all comments and articles analyze different aspects of a single issue, the staff and editors become experts on the Volume’s topic. The Symposium offers members of the Legal Forum a rare opportunity to interact with pre-eminent legal scholars from both inside and outside the University of Chicago community.
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Symposium on “Punishment and Crime”
TheUniversity of Chicago Legal Forum, November 12th and 13th, 2004
Keynote Address
Friday, November 12th, 4:00 pm in the Courtroom
Douglas Berman
Professor of Law, Ohio State University, Moritz College of Law
Author, Sentencing Law & Policy Blog
Douglas A. Berman is an internationally recognized criminal law scholar and an authority on criminal sentencing. After graduating summa cum laude from Princeton University, he went on to receive his J.D., magna cum laude, from Harvard Law School, where he served as an editor of the Harvard Law Review. Following graduation from Harvard Law School, Professor Berman clerked for the Honorable Jon O. Newman and the Honorable Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. He then worked for Paul, Weiss, Rifkind, Wharton & Garrison before joining the faculty of the Ohio State University Mortiz College of Law.
Professor Berman’s scholarly interest is criminal procedure and sentencing. Professor Berman is the creator of and sole contributor to the Sentencing Law & Policy Blog ( which was inaugurated this past spring. He has been profiled for his weblog work in the Wall Street Journal article, “Law Professor’s Web Log Is Jurists’ Must-Read.”
Professor Berman is also the author of over forty articles and commentaries and a co-author of the casebook Sentencing Law and Policy: Cases, Statutes and Guidelines. Additionally, Professor Berman has served as an Editor of the Federal Sentencing Reporter for nearly 10 years , and now serves as co-managing editor of the Ohio State Journal of Criminal Law. He currently teaches Criminal Law, Criminal Punishment and Sentencing, Criminal Procedure -- Evidence Gathering, The Death Penalty, and Introduction to Intellectual Property. During the 1999-2000 school year, Professor Berman received the Ohio State University Alumni Award for Distinguished Teaching. This award is given to only 10 persons each year from an eligible pool of nearly 3,000 faculty members; Professor Berman was one of the youngest faculty members to ever receive this award..
Professor Berman’s keynote speech, “Re-conceptualizing Sentencing,” will examine the state of criminal sentencing in the wake of the Supreme Court’s decision in Blakely.
Panel I: Public Policy Approaches
Friday, November 12th at 5:00 p.m. in the Courtroom
Moderator: Albert Alschuler
Julius Kreeger Professor of Law and Criminology
University of Chicago Law School
Albert Alschuler has taught at the University of Chicago Law School since 1985, where he currently serves as the Julius Kreeger Professor of Law and Criminology. Professor Alschuler received his A.B. from Harvard College in 1962, graduating cum laude. In 1965, he graduated from Harvard Law School, where he was a case editor of the Harvard Law Review. Professor Alschuler then clerked for Justice Walter V. Schaefer of the Illinois Supreme Court, and served as special assistant to the assistant attorney general in charge of the criminal division of the U.S. Justice Department.
Professor Alschuler joined the Universtiy of Chicago faculty after teaching at the University of Texas, the University of Colorado, and the University of Pennsylvania; additionally, he has been a visiting professor at the University of Michigan, the University of California at Berkeley, the Brooklyn Law School, and Columbia University, and a visiting scholar at the National Institute of Justice and the American Bar Foundation. Professor Alschuler’s scholarship focuses on a broad spectrum of criminal justice topics, including plea bargaining, sentencing reform, search and seizure, and privacy Professor Alschuler has published several articles on criminal law, authored Law Without Values: The Life, Work and Legacy of Justice Holmes, and co-auhtored The Privilege Against Self-Incrimination: Its Origins and Development. He is currently teaching American Legal Theory and Criminal Procedure.
Panelists:
Jens Ludwig
Associate Professor of Public Policy
Georgetown Public Policy Institute
Professor Lugwig is currently an associate professor at Georgetown Public Policy Institute, where he has taught since 1994. Professor Ludwig is also currently an Affiliated Expert of the Johns Hopkins Center for Gun Policy and Research, and a Member of the National Consortium on Violence Research at Carnegie Mellon University. Professor Ludwig received his M.A. and Ph.D. in Economics from Duke University, in 1992 and 1994, respectively. He has been a visiting scholar at the Northwestern University/University of Chicago Joint Center for Poverty Research and at the Brookings Institution, and was a National Academy of Education/Spencer Foundation Postdoctoral Fellow. Professor Ludwig currently teaches thne introductory applied microeconomics course for policy analysts, an education policy elective, a class on crime and urban problems, and supervision of masters practicum projects on education and social policy.
Professor Ludwig concentrates his scholarship in the areas of social policy, urban poverty, education, and gun violence. He co-authored the book Gun Violence: The Real Costs, and co-editored Evaluating Gun Policy (forthcoming, November 2002). His research on gun violence and gun control has been published in leading scholarly and scientific journals, has been presented to state legislatures and committees in California, Kansas and Minnesota, and has been featured in articles and reports by the New York Times, the Washington Post, Time Magazine, National Public Radio, CBS, NBC, and CNN.
Abstract:
Gun Control and Policy Analysis: The Hawaiian Experience
Co-Authored by Joseph A. Peters and Philip J. Cook
The costs of gun violence to American society are enormous -- on the order of 30,000 lives and $100 billion per year (Cook and Ludwig, 2000). While more guns in circulation on net seem to lead to more homicides (Duggan, 2001, Cook and Ludwig, 2004a), previous federal and state regulations of gun ownership and acquisitions have had little effect on gun violence, particularly gun crime (Cook and Ludwig, 2004b, Hemenway, 2004). One possible explanation for the limited success of previous gun laws is that most laws governing gun sales apply only to those sales made by licensed firearms dealers, and exempt the 30 to 40% of gun transfers made in the so-called "secondary market" (Cook, Molliconi and Cole, 1995, Cook and Ludwig, 1996). While some states and localities have enacted more restrictive gun regulations that explicitly or implicitly attempt to control the secondary market, such regulations may be undermined by the ease with which guns can be transferred across state lines (Cook and Braga, 2001, Webster, Vernick and Hepburn, 2001).
The present paper attempts to learn more about the potential of state-level gun laws to control gun violence by providing a policy analysis of gun regulations in Hawaii. We believe that Hawaii provides a useful "natural experiment" for evaluating the potential impacts of state gun laws on crime because relative to other states, the technology of trafficking guns from elsewhere may be more complex and costly where there is a very large "moat" around the state's boundaries.
We discuss in some detail the predicted effects of Hawaii's series of gun laws on gun crime in the state from a variety of perspectives, including the economic / policy perspective and the sociological / legal perspective. Sociologists and lawyers typically focus on the ease with which most existing firearm laws can be circumvented, particularly by people who may be highly motivated to acquire a gun for self protection. The economic and policy-analytic perspectives focus instead on heterogeneity in offender motivation, and the responsiveness to the price, money or risk of acquiring guns by the aggregate demand for guns by high-risk people. This latter perspective is also characterized by careful attention to the problem of constructing valid comparison groups of states to estimate the counterfactual crime or suicide rates that Hawaii would have experienced had the state not modified its gun policy.
We then present original empirical evidence on the impacts of changes in Hawaiian gun policy, with particular attention devoted to a 1981 law that, among other things, enhanced the state's permit-to-purchase system by requiring a 10 day waiting period for permits as well as fingerprinting and photographing of prospective gun buyers, and requiring that guns bought in Hawaii must be registered. (Prior to the 1981 law, the registration requirement applied only to guns brought into the state from outside). We show that both the US as a whole and the set of Western states excluding California provide promising comparison groups for estimating the effects of Hawaii's 1981 gun laws, as suggested by the general similarity across states or groups of states in homicide, suicide and gun-ownership trends prior to this point.
We find that homicide and suicide rates declined more rapidly in Hawaii than in the rest of the US or in other Western states following enactment of the 1981 law, although the degree to which this relatively greater decline can be attributed to the law itself remains under investigation. Also notable is that Hawaii, unlike most other states with large cities, did not have the same increase in drug arrests and gun homicides during the late 1980’s that most states experienced as a result of the crack epidemic. To the extent to which any of these patterns reflect the causal effects of Hawaii’s gun laws, one lesson might be that state-level firearm regulations may be relatively more effective when they are relatively more enforceable.
Michael Cahill
Assistant Professor of Law
Brooklyn Law School
Michael Cahill is currently an assistant professor of law at Brooklyn Law School, specializing in criminal law and health law. He previously taught as a visiting assistant professor of law at Chicago-Kent School of Law. Professor Cahill received his B.A. from Yale University, and subsequently received his M.P.P. and J.D. from University of Michigan School of Public Policy and University of Michigan Law School, respectively. During law school, Professor Cahill was the Note Editor of the Michigan Law Review. Professor Cahill was a law clerk to Judge James Loken of the United States Court of Appeals for the Eighth Circuit. From 2000-03, Professor Cahill was the staff director of the Illinois Criminal Code Rewrite and Reform Commission helping to draft and revise criminal code provisions. He has also served as a consultant on the Penal Code Reform Project of the Kentucky Criminal Justice Council and was an Adjunct Professor at Northwestern University School of Law.
Among his publications are the book, Law Without Justice: How, and Why, Criminal Law Deliberately Sacrifices Justice, co-authored with Paul H. Robinson (Oxford University Press, forthcoming), and a recent co-authored article "Can a Model Penal Code Second Save the States from Themselves?" He has also co-authored articles for the American Journal of Law & Medicine.
Abstract:
Punishment Decision at Conviction: Recognizing the Jury’s Role
Discussions of criminal punishment tend to focus on sentencing as the unique moment when punishment is affixed. Yet, two punishment decisions are made in the course of establishing a criminal defendant’s liability. The first occurs at conviction, where the range of available punishments is narrowed to that defined by the conviction offense’s statutory grade. The second occurs at sentencing, when a more refined decision is made as to a punishment within that range. At present, the first punishment decision involves no explicit judgment by the decisionmaker (the jury, in a jury trial) as to what constitutes a proper punishment, even in broad terms. Instead, the jury makes a set of factual findings and votes to convict of an offense, without knowing its grade or the punishment range attaching to that grade. The “first cut” punishment level determined by the offense’s statutory grade is the imposed administratively, by operation of law.
I argue in this Article that the first punishment decision, the one made at conviction, should not be made while blind as to its consequences, as is currently done in jury trials (though, significantly, not in bench trials). The jury should have both a greater, and more explicit, role in assigning punishment – not only (or, perhaps, even at all) by taking on a greater role with respect to the second, sentencing decision, which is the focus of most current attention, but also by wielding more (and more informed) power with respect to the punishment consequences of the initial decision to convict. In short, I am proposing that we should instruct criminal juries not only about the elements of the offenses with which a defendant is charged, but also about the offense grades and overall sentencing ranges that correspond to each of those offenses.
Frank O. Bowman, III
M. Dale Palmer Professor of Law
Indiana University School of Law – Indianapolis
Professor Bowman currently serves as the M. Dale Palmer Professor of Law at Indiana University School of Law at Indianapolis. He teaches primarily in the areas of criminal law, criminal procedure, and evidence. Professor Bowman received his B.A. from The Colorado College in 1976 and his J.D. from Harvard Law School in 1979. Following his graduation from Harvard Law School, Professor Bowman entered the U.S. Department of Justice as part of the Honors Graduate Program. He spent three years as a Trial Attorney in the Criminal Division in Washington, D.C. From 1983 until 1986, he was a Deputy District Attorney for Denver, Colorado. He also spent three years in private practice in Colorado. In 1989, Professor Bowman joined the U.S. Attorney’s Office for the Southern District of Florida, where he was Deputy Chief of the Southern Criminal Division and specialized in complex white-collar crimes. In 1995-96, he served as Special Counsel to the United States Sentencing Commission in Washington, D.C. From 1998-2001, he served as academic advisor to the Criminal Law Committee of the United States Judicial Conference. Professor Bowman has also been adjunct professor of law at the University of Denver College of Law, and a visiting professor at Washington & Lee University Law School, Gonzaga University School of Law, and Wake Forest University School of Law.
Professor Bowman is a leading specialist on federal sentencing guidelines. He is a co-author of the treatise, Federal Sentencing Guidelines Handbook, a frequent contributor to national law journals and a member of the editorial boards of the Federal Sentencing Reporter and the Criminal Justice Review.
Abstract:
Murder, Meth, Mammon & Moral Values: The Political Landscape of Sentencing Reform in America
This paper will examine the American experiment with mass incarceration during the last quarter century, note some successes and failures of that experiment, and attempt to explain the persistence of high incarceration rates. It will suggest that the political landscape may be shifting in ways that could produce significant changes in the status quo. Finally, and apropos of the discussion of “moral values” as determinative of the recent election, it will suggest that one missing piece in an emerging, and somewhat unlikely, coalition favoring sentencing reform is the conservative white Protestant base of the Republican Party.
Panel II: The Economics of Punishment
Friday, Novemeber 12th at 6:15 p.m. in the Courtroom
Moderator: John Pfaff