About

Josh Bowers is a faculty member at the University of Virginia School of Law, where his scholarly work examines perceptions of moral and legal obligations, particularly focusing on in-group biases and stranger blindness. His research explores how these biases influence legal and moral decision-making in extreme circumstances, such as in the context of the criminal justice system and humanitarian crises. Bowers' notable contributions include an analysis of the role that institutional pride and in-group favoritism play in legal processes, as well as an investigation into moral complexities faced by individuals in extreme situations, exemplified through case studies like the aftermath of Hurricane Katrina and biblical and literary references. His work emphasizes the challenges that in-group biases pose to epistemic capacities and the appropriate application of mercy and care. Bowers argues that the criminal legal system is often ill-equipped to address moral complexities arising in extreme circumstances and advocates for a presumption of mercy in certain cases. His scholarship combines legal analysis with moral philosophy, aiming to deepen understanding of how biases affect justice and moral judgment in critical situations.

Research topics

• Political Science
• Law
• Law and economics
• Sociology
• Criminology
• Economics
• Psychiatry
• Business
• Medicine
• Psychology

Selected publications

• Multidimensional Modeling to Maximize Adaptations to eXercise: The M ³ AX Trial Rationale and Study Design

  medRxiv · 2025-05-28

  preprintOpen access

  Age-related functional declines are thought to be caused by hallmark biological processes that manifest in physical, mental, and metabolic impairments compromising intrinsic capacity, healthspan and quality-of-life. Exercise is a multipotent treatment with promise to mitigate most aging hallmarks, but there is substantial variability in individual exercise responsiveness. This inter-individual response heterogeneity (IRH) was first extensively interrogated by Bouchard and colleagues in the context of endurance training. Our group has interrogated IRH in response to resistance training and combined training, and we have conducted trials in older adults examining dose titration and adjuvant treatments in attempts to boost response rates. Despite the work of many groups, the mechanisms underpinning IRH and effective mitigation strategies largely remain elusive. The National Institute on Aging (NIA) hosted a focused workshop in 2022 titled "Understanding heterogeneity of responses to, and optimizing clinical efficacy of, exercise training in old adults". This workshop spurred a dedicated NIA request for applications (RFA) with the major goal "to better understand factors underlying response variability to exercise training in older adults." We developed a two-phase Sequential Multiple Assignment Randomized Trial (SMART) in response to the RFA that will allow us to classify individual responsiveness to combined endurance and resistance training and interrogate potential mechanistic underpinnings (Phase I), followed by an approach to boost responsiveness (Phase II). Using deep in vivo, ex vivo, and molecular phenotyping, we will establish multidimensional biocircuitry of responsiveness and build predictive models, providing a basis for personalized exercise prescriptions.

  PublisherOA PDFDOI

• Multidimensional Modeling to Maximize Adaptations to eXercise: the M ³ AX trial rationale and study design

  Journal of Applied Physiology · 2025-09-28 · 1 citations

  articleOpen access

  The Multidimensional Modeling to Maximize Adaptations to eXercise (M 3 AX) Trial is the first trial designed specifically to better understand interindividual response heterogeneity (IRH) among older adults during combined endurance and resistance training. A two-phase sequential multiple assignment randomized trial design (enrolling n = 250) enables IRH interrogation in Phase I (12 wk) and mitigation in Phase II (10 wk), with deep phenotyping across physiological, metabolic, cognitive, behavioral, cellular, and molecular domains including biological hallmarks of aging.

  PublisherDOI

• <i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride

  American Journal of Law and Equality · 2022-01-01

  articleOpen access1st authorCorresponding

  In McCleskey v. Kemp,1 the Supreme Court effectively “closed the courthouse doors” to constitutional claims of systemic racism in the criminal-legal system.2 The defendant, Warren McCleskey, had offered a sophisticated academic study demonstrating pronounced racial skews in the administration of capital punishment in Georgia. Consistent with social science before and since, the study showed that the race of the victim was the most significant variable in determining whether a murder defendant faced or received a sentence of death. Remarkably, the Court credited the study’s robust findings; yet in an opinion authored by Justice Lewis F. Powell, a five-Justice majority held the study largely irrelevant, concluding that its statistics could demonstrate neither “exceptionally clear proof” of purposeful discrimination to establish an equal protection claim nor a “substantial risk” of “arbitrary and capricious” punishment to establish a claim of cruel and unusual punishment.3Commentators have dubbed Powell’s decision a modern-day Dred Scott.4 But a better point of antebellum comparison might be Miller v. McQuerry,5 one of the opinions Robert Cover examined in his groundbreaking work of legal history, Justice Accused: Antislavery and the Judicial Process, a searing portrait of judicial timidity in the face of the horrors of the fugitive slave acts.6 The judges upon whom Cover focused were ostensibly abolitionists. They knew better but refused to do better. Facing a “difficult choice”—a “moral-formal dilemma”—between their personal opposition to slavery and their positive obligations to perceived legal commands, they prioritized “role fidelity” and “rule fidelity” and “marched to the music.”7 These were bad decisions not only because they constituted “almost universal judicial acquiescence”8 to racialized state violence but also because they entailed shabby forms of legal reasoning. As Cover explained, these judges made awful outcomes appear legally inevitable by unnecessarily resorting to a cheap set of jurisprudential techniques: (1) “elevation of the stakes,” (2) a “retreat to formalism,” and (3) “ascription of responsibility elsewhere.”9In McCleskey, Justice Powell made the same moves. He exaggerated the dangers of pursuing an alternative moral course; he read positive law narrowly, pretending the case was easy; and he accepted no accountability for the problematic results.10 More to the point, Powell apparently shared with his antislavery predecessors an abolitionist sensibility. When asked, in retirement, by his biographer, John Jeffries, whether he regretted any of his previous votes, Powell responded: “Yes, McCleskey v. Kemp.”11 When Jeffries pressed Powell on whether he meant that he was now open to statistically based, constitutional claims of systemic inequality, Powell declared categorically, “No, I would vote the other way in any capital case. … I have come to think that capital punishment should be abolished.”12In other ways, however, Justice Powell does not fit neatly within the Cover mold. Cover rooted the cowardice of his antislavery judges, at least partially, in the “thoroughgoing positivism” of the era.13 But Powell was neither a positivist nor a formalist. Indeed, he was not even a death-penalty abolitionist—at least not in the way one would normally understand that concept.14 What, then, accounted for Powell pursuing such a remarkably similar—and similarly shoddy15—moral, prudential, and jurisprudential course? In this essay, I dissect McCleskey v. Kemp. I conclude that amoral positivism cannot explain Powell’s McCleskey decision. To understand the decision, we must dig deeply into Powell’s psychology. There we discover Powell’s abiding principled commitment to a particular brand of anti-positive institutionalism—a moral orientation toward the rule of law and, more to the point, its systems and stakeholders.16* * *It is impossible to separate Powell the person from Powell the professional. More so than with most judges, Powell’s two lives were bound up. Powell made plain, for instance, in Bowers v. Hardwick that his vote to uphold Georgia’s sodomy law was informed by his subjective (and obtuse and “puzzling”) belief that he “had [n]ever met a homosexual.”17 Likewise, personal experience framed Powell’s moderate support for reproductive rights. Powell came to appreciate the dangers of illegal abortion only after discussing the risks with his daughter and learning of the death of a pregnant woman connected to his former law firm.18 This was a recurring theme throughout Powell’s career. Familiarity mattered to him; it was the foundation for his sympathies—the basis for his implicit biases. Without that personal connection, Powell’s “essential humanity” more often remained “hidden from view.”19By most accounts, Powell was an ideologically and temperamentally even-keeled individual—a “hard-line moderate,” as John Jeffries titled a chapter of his biography.20 There is some evidence, to be sure, that Powell did not wholly deserve this jurisprudential and dispositional reputation. When Powell was chair of the Richmond School Board, for instance, “he never really identified himself with the needs and aspirations of Virginia’s black school-children.”21 And, particularly in the years before he rose to the bench, Powell sometimes proved willing to adopt the role of reactionary firebrand. Powell once insisted, in a “hard-edged” editorial, that America was “not a repressive society” and had no “system of countenanced oppression.”22 Likewise, in response to Martin Luther King Jr.’s Letter from a Birmingham Jail, Powell gave an angry speech denouncing civil disobedience as antecedent to “organized lawlessness and even rebellion” and attacking King, unfairly, as one who would “preach, practice and condone lawlessness.”23 And, of course, Powell prepared a now-public (then-secret) document—since dubbed the “Powell Memorandum” or “Powell Manifesto”—that critics have called the blueprint for contemporary movement conservatism.24 Still, for the purposes of this essay, I plan to treat Powell charitably—to accept the prevailing perspective that Powell was a profoundly decent person and jurist. Indeed, I hope to reveal that these are the precise qualities that led Powell to stumble so badly in McCleskey v. Kemp.25Powell was, first and foremost, an institutionally proud man—a man who prioritized the interests of the institutionalists closest to him. Powell saw the best in these privileged professionals, and, in that way, he failed to perceive them at their worst. Ironically, then, it was his implicit institutional biases that led him to undervalue the implicit racial biases at work in the criminal-legal system. More to the point, Powell’s institutional biases were themselves forms of structural racism in action. His preferences for his own cherished systems and systemic insiders were mechanisms by which he legitimized and perpetuated the criminal-legal system’s ongoing subordination of outsiders.26It may seem odd to call into question character traits like geniality and gentility. These are often admirable human qualities. But there is, particularly among moderate legal professionals, something of a “cult of civility” that, in some settings, has great capacity to cause (or, at least, tolerate) real harm.27 Its initiates accept instinctively the idea that moderation is an intrinsic moral virtue. To my thinking, however, it seems obvious that the normative worth of moderation can only ever be contingent. And, in extreme cases—like Chamberlain treating Hitler with kid gloves—moderation may translate to the appeasement of morally horrible actors.28 Even in more banal circumstances, civility’s cult may countenance oppression by commanding kindness and respect toward friends and neighbors—peers and colleagues—even as they apathetically disregard (or even aggressively abuse) the moral interests of marginalized groups. On this reading, Justice Powell was undone by his own myopic decency—by his lack of a robust peripheral moral vision. Thus, in McCleskey v. Kemp, he reflexively deferred to institutional stakeholders and largely ignored persuasive statistical evidence that capital practice was, at every stage, systemically and systematically skewed against Black murder victims.29 He refused to countenance the reality that his own justice system could countenance so much injustice.30Powell made McCleskey personal—just as he had made Bowers personal a year earlier. His jurisprudential approach to both cases was regrettable in the basic sense that Powell would come, in retirement, to regret the “ugly” rulings.31 But, more to the point, his approach was regrettable because it entailed a “willful blindness” or “willed ignorance” of social conditions and consequences.32 On the subject of Bowers, Jeffries explained: “Powell had never known a homosexual because he did not want to. In his world, … homosexuality did not fit, and Powell therefore did not see it.”33 Likewise, in Powell’s world, systemic racism in criminal-legal institutions did not fit, and Powell therefore did not see it. In each case, Powell lacked exposure to the most affected populations and therefore exhibited a “failure of … moral imagination.”34 This is what Mark Tushnet referred to as Powell’s “limited social vision.”35 This is how a judge who fashioned himself a moral, moderate, incremental, and sensitive pragmatist could author an opinion that was immoral, immoderate, maximalist, and even callous.36In the first part of this essay, I examine Powell’s McCleskey opinion, discussing its moral and jurisprudential shortcomings and the ways in which its reasoning tracks Cover’s fugitive-slave cases. In the second part, I provide a biographical and psychological profile of Powell, and I reveal the influence that his anti-positive, institutional pride had on his decision and, likewise, his ultimate repudiation of it. In the third part, I sketch a portrait of the kind of judge who is likelier to prove willing to reject immoral law and legal outcome. Perhaps surprisingly, that judge is a type of positivist—a skeptical positivist. Finally, I offer some thoughts about the promise of a jurisprudence of skeptical positivism, and I set the stage for a subsequent essay, examining the unfortunate reasons why most judges reject skepticism in favor of similar (but perhaps less extreme) jurisprudential versions of Powell’s professional hubris.37Warren McCleskey, a Black man, was convicted in Fulton County, Georgia, of capital murder and armed robbery for killing a white police officer during the robbery of a furniture store. The jury sentenced him to death. After exhausting his state appeals, he filed a writ of habeas corpus, challenging his sentence on the ground that the capital charging and sentencing process in Georgia violated equal protection and the prohibition against cruel and unusual punishment.38 In support of his claims, McCleskey’s lawyers offered two sophisticated academic studies, led by David Baldus (collectively, the “Baldus study”), of well over two thousand murder cases handled by Georgia courts during the 1970s. The Baldus study crunched the data in several ways, demonstrating consistent, pronounced charging and sentencing skews based on the race of the murder victim, with one model concluding that, even after controlling for thirty-nine nonracial variables, defendants charged with killing white victims were more than four times as likely to receive death as defendants charged with killing Black victims.39Writing for the majority, Powell ostensibly accepted the Baldus study’s clear-cut findings and conceded that it “demonstrate[d] a risk that the factor of race entered into some capital sentencing decisions.”40 But he insisted that this statistically founded, systemic skew could not support an inference “that race entered into any particular sentencing decision.”41 The study spoke only to “the effect on the average,” not “the experience of a single individual.”42 All that mattered, constitutionally, was the decision-making and action in this case, with this prosecutor, this trial judge, this defendant, and this victim.43 Thus, Powell concluded, the Baldus study was insufficient to establish a discriminatory purpose for an equal protection claim or a sufficiently substantial risk of arbitrary punishment for a claim of cruel and unusual punishment.44In reaching that conclusion, Powell highlighted the individualized nature of capital charging and sentencing decisions. As he wrote in a McCleskey memorandum, “sentencing judges and juries are constitutionally required to consider a host of individual-specific circumstances in deciding whether to impose capital punishment. No study can take all of these individual circumstances into account, precisely because they are fact-specific as to each defendant.”45 In this way, Powell drew upon a special constitutional protection enjoyed by capital defendants as a basis to undermine McCleskey’s constitutional claims.46 Powell used constitutionally mandated discretion to downplay that concept’s precise danger—to wit, that the “the power to be lenient is the power to discriminate.”47 In dissent, Justice Blackmun described the illogic: “Rather than requiring a correspondingly greater degree of scrutiny of the capital sentencing determination, the Court relies on the very fact that this is a case involving capital punishment to apply a lesser standard of scrutiny.”48 And Justice Brennan, in his own dissent, likewise noted the almost-tautological shortcoming of invoking the practice of discretion to legitimize potentially problematic exercises of discretion: “[T]he Court cannot rely on … safeguards in discounting McCleskey’s evidence, for it is the very effectiveness of those safeguards that such evidence calls into question.”49Arguably, Powell did not announce a categorical ban against statistical claims of systemic racism in the criminal-legal system. But it is hard to imagine a party presenting more sophisticated empirical evidence than the Baldus study.50 In any event, defendants typically lack the ability to access the kind of actor-specific evidence of discrimination Powell suggested they would need to rebut the Court’s powerful presumptions of propriety.51 Unsurprisingly, then, “not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp.”52 The case marked the end of the road—at least, as a matter of positive constitutional law—for claims of systemic racism in criminal-legal charging and sentencing.53 Today, any aggregate statistical challenge to charging and sentencing (capital or otherwise) is subject to McCleskey’s practically insurmountable equal-protection standard of “exceptionally clear proof.”54 As Michelle Alexander explained, “the case was about much more than the death penalty. The real issue at hand was whether—and to what extent—the Supreme Court would tolerate racial bias in the criminal justice system as a whole. The Court’s answer was that racial bias would be tolerated—virtually to any degree—so long as no one admitted it.”55 Justice Powell’s concern was with bad apples rather than institutional rot. More to the point, Powell presumed all apples were good apples, absent demonstrable individualized evidence of specific rot. And the Court followed his lead.In several ways, Justice Powell’s reasoning resembled that of antislavery judges, who, as explored by Robert Cover, declined to obey their consciences, choosing instead to enforce the evil fugitive slave acts. According to Cover, the first trick of the trade was “elevation of the stakes”—that is, exaggerating the benefits of perceived “rule fidelity” and “role fidelity” and the comparative costs of the moral alternative.56 In McCleskey, Powell emphasized repeatedly the institutional advantages of rejecting a “statistical jurisprudence,” and he minimized the moral importance of constitutionally regulating systemic racism.57 To be fair, Powell did seem to have a sense of the scope of the problem of systemic racism, but not the right sense—not an empathetic or affective sense. In a McCleskey memorandum, he expressed a concern that the defendant’s constitutional claims amounted to “an attack on capital punishment itself.”58 And, in the body of the opinion, Powell explained that McCleskey’s argument extended “to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence to the State itself that enacted the capital punishment statute and allow[ed] it to remain in effect despite its allegedly discriminatory application.”59 He worried that permitting a statistical claim today about undervalued Black victims might lead to claims tomorrow about “statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges.”60He likewise repeatedly extended the institutional implications of a ruling for McCleskey beyond the capital context. For instance, he cited studies demonstrating racial disparities in prison terms and explained that “if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other of Even more he that to its conclusion, into question the that criminal justice And, throughout the opinion, Powell emphasized the role discretion not only in death-penalty but throughout criminal-legal that discretion is intrinsic to of criminal that a for McCleskey would be to the and role of discretion in criminal justice that have enjoyed in all charging that decisions are the of the criminal justice and that the of discretion to provide individualized justice … is in was right about one discretion and discrimination do criminal-legal institutions (and they the courthouse to demonstrable racial could a of The is that the Baldus study was no McCleskey other studies would (and have racial in capital charging and a of successful For a moderate like Powell, this was a to Thus, Powell himself into a of He was to do two at systemic racism the systemic costs of it He emphasized the scope of the institutional by statistical claims even as he his decision in to the immoral of those statistical He the and of discretion but to racial instead that we cannot that what is is Powell’s of the Powell to the Baldus for its racial skews to be something of a to be or to their qualities of human nature and of human that are Likewise, Powell wrote that there is an lack of to these human which he made them of constitutional But the of the Baldus study is that racial skews are This was not an of an lack of about which systemic actors must be the of the absent evidence to the The Baldus study was the powerful evidence to the were studies before and And, of course, there is and evidence beyond the Baldus evidence that its to the point, Powell were right that the influence of race is only there should have been to about statistical claims criminal-legal could with the and persuasive empirical case as it And, with respect to capital constitutional safeguards as well as Powell a “statistical would only a of not a But, of course, constitutional safeguards were not as the Baldus study was (and in by at least racial These were the and they the why was the Court so with to the of to institutional racism and equal than this Powell drew a and set of that the and the decision with an in the part of the decision, Powell that race is no than other good or might also correlate with of The is and most race is and or To the from to … According to dissent, could that this has on the basis of upon to that imposed on the basis of McCleskey’s claim was “not or but a question of a system might but … empirical of how it does In such circumstances, it was and for Powell to to systemic racism, of the its and over which a was did Powell His to the of race was, likewise, on with his that to be no why a white defendant in a could not a claim similar to McCleskey’s racial disparities in sentencing are by a statistical can to one the fact that such discrimination against white defendants Powell was to an of equal protection to I do not with but Powell at least had a basis for Black and white But, on that why was Powell not to racism against both and that not what equal protection is all about for the any event, all or only as as the Court them to The McCleskey Court had at least two to the (or to from in the first but would have been to the by statistical claims to death-penalty Likewise, Powell should and could have constitutional to race and other Court’s of for criminal sentencing is … The Court can in such only by its own jurisprudence the scrutiny on of death and As a it to do justice to a claim in which both those are for the most sensitive a can Powell made no to his decision. He insisted that he could to the type of challenge by even as several were He statistical claims as an institutional was not judicial to a that any other open a from which would Powell had his approach in favor of a that that does not on a constitutional or The is with the that an with race was for In Powell that systemic racism was to he an of the rule of over which is precisely what had in he dubbed Powell’s approach of much the it ignored the fact that racial bias in the administration of the death penalty to be the type of that the and should be is that Powell did not need to the the for racial and against subordination is the of the Black experience in According to that there may be more than McCleskey may be but it does not of judicial The was framed as a against and the arbitrary administration of punishment is a basic of any that to be by the rule of be sure, institutional racism would be a and impossible constitutionally or But there were ways, for the Court to Powell lacked was the moral to he from and the constitutional before it could even after Justice Powell’s him as a judge who the as judges do who the by all the the In McCleskey, however, Powell did He to a of that him to the that the case In that he like Cover’s antislavery judges, who decisions they were under the of clear commands, even they This is not to that the McCleskey decision lacked a constitutional The within the of from Still, it was not could about what positive law the one Powell had support for the that a statistical study could not establish a constitutional had the question with less sophisticated For instance, in v. the Supreme Court social science demonstrating that capital punishment for had been to Black and convicted of against white Likewise, in State v. the Supreme Court refused to about the defendant’s individual case from aggregate statistics about the influence of race on capital punishment for in of these cases are to be to the case at … To a or in some of they would no have but in a of law as they are of or Even Justice who in McCleskey, the same during his as an we are with is case and only case. … are not yet to and the in every case of a defendant in the State of on the basis of of social and statistical the other only one year before McCleskey, Justice Powell himself had authored the Court’s opinion in v. which in the of jury that statistical could be used to a claim of a discriminatory the to reasons for its apparently of of And Powell had even in in v. Georgia, that defendants might offer an equal protection “not by any of the that there by “substantial statistical evidence … to a pronounced in administration of the death In McCleskey, Powell could have his to his approach to

  PublisherOA PDFDOI

• McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride

  SSRN Electronic Journal · 2022

  1st authorCorresponding
  • Political Science
  • Sociology
  • Political Science
  PublisherDOI

• Kicking the Habit: The Opioid Crisis and America's Addiction to Prohibition

  SSRN Electronic Journal · 2020 · 18 citations

  1st authorCorresponding
  • Political Science
  • Medicine
  • Psychiatry

  There is no single cause of America’s opioid crisis, but overprescription of opioids has undoubtedly contributed. The federal government has responded predictably, criminally prosecuting doctors who prescribe opioids to the drug dependent. The approach may seem sensible, but it is as wrongheaded as our century‐​old drug war. Law enforcement’s recent push for punishment might succeed in limiting opioid prescriptions but only at the cost of driving drug‐​dependent individuals into more dangerous criminal markets and toward adulterated street heroin and fentanyl. For individuals addicted to opioids or suffering from chronic pain, a war on drugs has never been a prescription for improving wellness. This dominant abstinence‐​based policy model is grounded in the logic of prohibition, and it depends not upon healing but upon shame, isolation, prosecution, and penalty. The better model is “harm reduction,” grounded in connection and care, reason and rights, and human dignity and worth. International and historical public health efforts have demonstrated that one of the best ways to confront epidemic drug use is addiction maintenance—that is, establishing medically supervised clinics to provide pharmaceutical‐​grade narcotics (often free of charge) in amounts calibrated to maintain the social and physical well‐​being of the drug dependent. In this policy analysis, we survey these international and historical efforts. We look to our own past to examine the roots of the modern American drug war and describe contemporary reforms both within and beyond the opioid crisis. We explain how meaningful change is likeliest to occur: from the ground up, as a product of underground experimentation initiated by and within the most‐​affected communities. Finally, we offer our own public health prescription: a set of pragmatic harm‐​reduction responses to prohibition and its counterproductive and often deadly effects.

  Publisher

• 1. Mandatory Life and the Death of Equitable Discretion

  New York University Press eBooks · 2020

  1st authorCorresponding
  • Political Science
  • Business
  • Law and economics
  PublisherDOI

• What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life

  SSRN Electronic Journal · 2020-09-04

  articleOpen access1st authorCorresponding

  We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this article, I question that assumption and propose a radical alternative. Consider the individual punished repeatedly for hopping subway turnstiles. As convictions accumulate, sentences rise—to weeks and ultimately months in jail. At some point, criminality comes to signal something other than the need for punishment. It signals the presence of need. Perhaps, the recidivist was compelled by economic or social circumstances. Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one. No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences. My claim is that, in these circumstances, it would be better to just stop punishing. To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists. But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution. My goals are at once narrow and broad. I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police. I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally. I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings. I endorse “harm reduction,” the governance philosophy that grounds those reforms. And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

  Publisher

• Kicking the Habit: The Opioid Crisis, America's Addiction to Punitive Prohibition, and the Promise of Free Heroin

  The Knowledge Bank (The Ohio State University) · 2019-08-01

  articleOpen access1st authorCorresponding

  There is no single cause of America's opioid crisis.But unethical physicians and unscrupulous prescription practices undoubtedly have contributed.The federal government has responded predictably: criminally prosecuting doctors who prescribe opioids to the drug dependent.The approach may seem sensible, but it as wrongheaded as our century-old drug war.Indeed, it is part-and-parcel of that misguided struggle.Law enforcement's recent push for punishment might succeed in limiting opioid prescriptions, but only at the cost of driving drug dependent individuals into more dangerous criminal markets, away from narcotics of reliable quality and toward adulterated street heroin and fentanyl.For individuals addicted to opioids or suffering from chronic pain, a criminal drug war has never been a prescription for improving wellness.Indeed, part of the problem is our very obsession with the pejorative notion of "getting clean."It is bad enough to conceive of the drug user as "dirty."It is much worse for a state to monomaniacally pursue an abstinence-based policy model.This dominant model is grounded in the cruel logic of punitive prohibition.It depends not upon healing but upon puritanical blame and shame, isolation and othering, prosecution and penalty.The better model is "harm reduction," grounded in connection and care, reason and rights, human dignity and worth.The evidence abounds.International and historical public health efforts have demonstrated, for instance, that one of the best ways to confront epidemic drug use is "addiction maintenance"-that is, establishing medically supervised clinics to provide pharmaceutical-grade narcotics (often free of charge) in amounts calibrated to maintain the social and physical wellbeing of the drug dependent.In this essay, we survey these international and historical efforts.We look to our own sometimes-better, sometimes-worse past.We examine the racist roots of the modern American drug war.We describe contemporary reforms, within and beyond the opioid crisis.We explain how meaningful change is likeliest to occur: from the ground up, as a product of underground experimentalism, initiated by and within the most-affected communities.And we offer our own public health prescription: a set of pragmatic harm reduction responses to punitive prohibition and its inhumane, counterproductive, and often deadly effects.

  Publisher

• Annoy No Cop

  SSRN Electronic Journal · 2017-03-06

  articleOpen access1st authorCorresponding

  The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve post-hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically — benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry. I coin the term “meaningful understanding” to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law-enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised — unable to plan a law-abiding life consistent with the promise of the legality principle. This troubling state of affairs arises most often in the context of order-maintenance policing. Street encounters are fast moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real-world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as “Black Lives Matter.” The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a “procedural” conception of legality, characterized by “modes of argumentation” capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding — articulated and evaluated bilaterally.

  Publisher

• Annoy No Cop

  University of Pennsylvania Law Review · 2017-01-01 · 1 citations

  article1st authorCorresponding

  The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve post-hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically — benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry. I coin the term “meaningful understanding” to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law-enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised — unable to plan a law-abiding life consistent with the promise of the legality principle. This troubling state of affairs arises most often in the context of order-maintenance policing. Street encounters are fast moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real-world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as “Black Lives Matter.” The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a “procedural” conception of legality, characterized by “modes of argumentation” capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding — articulated and evaluated bilaterally.

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Frequent coauthors

• Kenworthey Bilz

  3 shared

• Laura I Appleman

  College of Law

  3 shared

• Paul H. Robinson

  3 shared

• Janice Nadler

  2 shared

• Jonathan Simon

  Université de Montréal

  2 shared

• Anthony O’Rourke

  2 shared

• Marah Stith McLeod

  Notre Dame High School

  2 shared

• Jocelyn Simonson

  Brooklyn Law School

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• Research Professor of Law in honor of Graham C. Lilly and Pe…