EXTRALEGAL PUNISHMENT FACTORS
by Paul H. Robinson, Sean E. Jackowitz, and Daniel M. Bartels

The criminal law’s formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender’s liability and the grade of the offense. A look at how the punishment decisionmaking process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called “extralegal punishment factors” (“XPFs”).

XPFs, the subject of this Article, include matters as diverse as an offender’s apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, as well as forgiveness or outrage by the victim, and special hardship of the punishment for the offender or his family. Such XPFs can make a difference at any point in the criminal justice process at which decisionmakers exercise discretion, such as when prosecutors decide what charge to press, when judges decide which sentence to impose, when parole boards decide when to release a prisoner, and when executive officials decide whether to grant clemency, as well as in less-visible exercises of discretion, such as in decisions by police officers and trial jurors.

PDF · Paul H. Robinson, Sean E. Jackowitz, Daniel M. Bartels · 65 Vand. L. Rev. 737 (2012).

GO WHITE, YOUNG MAN
by Alfred L. Brophy

The Invisible Line: Three American Families and the Secret Journey From Black to White, by Daniel J. Sharfstein, follows three families whose members at some point crossed the color line separating black from white—or tried and failed to. These case studies tell us what it is to be American—how race is central to our identity, how we use race to take down opponents or to exclude—and how the line separating black and white is sometimes porous. However, is not the story of race and American legal history about the ways that race is defined by law and by norms? Race mattered because people policed the line separating blacks and whites. That many states classified people with a small percentage of African ancestry as white suggests that it was possible to move across the color line. Still, the cases where the color line was policed, rather than crossed, are significant.

PDF · Alfred L. Brophy · 65 Vand. L. Rev. En Banc 1 (2012).
Image Courtesy of the Ohio Historical Society