Suchergebnisse

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize more the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown "deliberate indifference" to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes the constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders.

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short Article tries to explain why this is happening and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown "deliberate indifference" to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The Article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders.

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many reasons proffered for punishment are in fact grounded in such views. This constraint, accordingly, limits what individuals can expect in terms of a societal response to crime. Section III develops the appropriate reasons for punishment in a modern, liberal regime. Here the article relies on a— largely undefended—conception of public reason as the most plausible theory of what reasons for punishment are available to liberals. Section IV offers some closing thoughts on why people might adopt a politically liberal view about punishment as their own, personal view about how they should relate to others.

As the Supreme Court rev1s1ts the clash between religious belief and the Affordable Care Act (ACA) in the Zubik1 case, it is worth mulling over a key phrase in the law that governs that clash: '·substantial burden." According to the Religious Freedom Restoration Act (RFRA), the government must-provided it does not meet certain other conditions, such as showing a compelling interest-make an accommodation if it places a ''substantial burden'' on a person's religious exercise.2 If the question in the Hobby Lobby case was whether a for-profit corporation could be a ''person" that ''exercised religion,"3 the question the Court now faces is whether the government has in fact ''substantially burdened" some religious non-profits in trying to accommodate their objection to the contraceptive mandate.4 But what is a ''substantial burden"? Or to put it another way, what makes a burden substantial? What follows is my best effort to provide clarity-in the form of a primer-as to the meaning of "substantial burden" under RFRA.

There is evidence everywhere that our criminal justice system is undergoing a crisis of practice. Increased police violence and the concomitant distrust of police in many communities, fear of aggressive enforcement tactics more generally, worries about widespread governmental surveillance and, above all, a concern with overcriminalization and mass incarceration-these are the dreary and familiar stuff of daily headlines. But, this crisis of practice in tum reflects a deeper crisis of how we theorize about criminal law. We lack, for the most part, any worked-out theory of what the policing and processing of crime should look like. Nor do we have real consensus on what things should be criminalized.1 And while we have theories of punishment in seeming abundance, they address a world that is, for the most part, divorced from our current reality.2 In particular, neither theories of deterrence nor retribution can explain, in any straightforward way, what is wrong with the warehousing of millions of people in prisons and jails across America.3 We live, as many have observed, in a "carceral state. "4 Our theories of criminal law and punishment, for from giving us grounds to criticize that practice, could in some ways be said to be propping it up.5 If we need to punish harshly because retribution demands it, or because deterrence requires it, then the carceral state is not an unfortunate reality. It may be a normative necessity.

American voters are shockingly ignorant about politics. Not only do they not know basic facts about the structure of American government (what the three branches are, etc.) or the views of the major political parties, they do not really know in many cases even what they believe about politics, because what they believe can be manipulated depending on how pollsters ask the questions. People may oppose welfare, for instance, but favor increasing money transfers to the poor-which is pretty much what welfare is.2 Even worse, when voters are motivated to seek out more information, and do seek out that information, they tend to do so in a biased way by gathering information from those sources which tend to confirm their existing opinions.3 So even intelligent voters tend to be ignorant about what the other side thinks. Now, one would think that such massive and pervasive ignorance would matter not just to the effective running of our democracy, but also matter to the normative desirability of democracy itself. And one would think philosophers who defend democracy would spend a lot of time worrying and obsessing about the problem of voter ignorance, and how to fix it.