Flawed Coalitions and the Politics of Crime

Author:David Jaros
Position:Assistant Professor of Law, University of Baltimore School of Law
Pages:1473-1522
SUMMARY

Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of discretionary federal sentencing practice by passing the Sentencing Reform Act, which ushered in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative... (see full summary)

 
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1473
Flawed Coalitions and the Politics of
Crime
David Jaros
ABSTRACT: Bipartisanship can be dangerous. In the late 1970s, liberal
and conservative forces united to discard two centuries of discretionary
federal sentencing practice by passing the Sentencing Reform Act, which
ushered in an era of fixed guidelines that would reshape the criminal justice
landscape. In the decades that followed, liberals would come to bitterly regret
their alliance with conservative sentencing reformers. The guideline regime
established by the Act ultimately advanced hardline conservative criminal
justice goals that were antithetical to the objectives of many of the Act’s
former liberal supporters.
Researchers have shown that a particular cognitive bias—cultural
cognition—can explain why intense partisan conflicts persist even when
different sides share the same long-term goals. But while scholars have
documented ways that cultural cognition fosters disagreement where parties
agree on desired outcomes, no commentator has explored the opposite
phenomenon: whether cultural cognition may foster agreement where, in
fact, citizens and policymakers sharply disagree.
This Article argues that the same cultural cognition biases that foment
conflict among parties that share similar goals may also mask substantive
differences among parties that should never have collaborated in the first
place. Using the reform effort that led to the federal sentencing guidelines
and the current movement to establish criminal “problem-solving courts,”
this Article demonstrates how, in some cases, cultural cognition may
dangerously frustrate the goals of elected officials who broadly delegate power
to politically unaccountable actors.
Accordingly, this Article recommends the use of safeguards borrowed from
administrative law that can minimize the dangers of flawed coalitions and
promote deliberative democracy. By adopting sunset provisions and third-
Assistant Professor of Law, University of Baltimore School of Law. I am grateful for the
help and insightful comments of Donald Braman, Adam Zimmerman, Mae Quinn, Will
Hubbard, Colin Starger, Greg Dolin, Ron Weich, Kristina Donahue, Bijal Shah, and all the
members of the UB Faculty Scholarship Colloquium. I owe a special debt to my wife for
laughing at my jokes and not my Article.
1474 IOWA LAW REVIEW [Vol. 99:1473
party monitors, policymakers can ensure that they do not overly commit to
reform policies that will one day undermine their own interests.
INTRODUCTION .................................................................................... 1475
I. THE ROLE OF COGNITIVE BIAS IN THE PERSISTENCE OF CONFLICT ..... 1478
A. CULTURAL COGNITION DEFINED ..................................................... 1479
B. PROPOSED STRATEGIES FOR COMBATING CULTURAL COGNITION
BIAS .............................................................................................. 1483
II. THE ROLE OF COGNITIVE BIAS IN THE MANUFACTURE OF FALSE
SOLIDARITY .......................................................................................... 1485
A. COALITIONS WITH SUBSTANTIVE DIFFERENCES ................................. 1485
B. TOWARD A MORE COMPLETE MODEL OF CULTURAL COGNITION ...... 1486
III. FALSE SOLIDARITY AND THE FEDERAL SENTENCING GUIDELINES ........ 1489
A. CULTURAL COGNITION AND THE SENTENCING REFORM ACT ............. 1494
B. THE DANGERS OF EXPRESSIVE OVERDETERMINATION ....................... 1497
C. THE LESSONS OF FEDERAL SENTENCING REFORM ............................. 1500
IV. CULTURAL COGNITION AND PROBLEM-SOLVING COURTS ................... 1503
A. THE PROBLEM-SOLVING COURT MOVEMENT ................................... 1505
B. COMPETING JUSTIFICATORY NARRATIVES FOR PROBLEM-SOLVING
COURTS ......................................................................................... 1507
1. Strange Bedfellows and Problem-Solving Courts ............... 1510
2. Cultural Cues, the Politics of Crime, and Problem-
Solving Courts ...................................................................... 1515
3. Delegating Tough Questions .............................................. 1516
V. RESPONDING TO THE CHALLENGES OF COGNITIVE BIAS ...................... 1518
A. SUNSET PROVISIONS AND PROBLEM-SOLVING COURTS ...................... 1520
B. EMPOWERING THIRD-PARTY MONITORS .......................................... 1521
2014] FLAWED COALITIONS AND THE POLITICS OF CRIME 1475
INTRODUCTION
The American people are crying out for bipartisanship and real solutions to the
challenges we face . . . .
— Congressman Charles F. Bass1
Although there is no progress without change, not all change is progress.
— John Wooden, Former UCLA Basketball Coach2
Bipartisanship can be dangerous. In the late 1970s, liberals and
conservatives had vastly different objectives for criminal justice reform.3 Yet
despite little agreement about the outcomes they hoped to achieve, the two
sides united to discard two centuries of discretionary federal sentencing
practice and ushered in an era of fixed guidelines that would reshape the
criminal justice landscape.4 Unfortunately for liberals, the guideline regime
established by the Sentencing Reform Act5 (“the Act”) ultimately advanced
hardline conservative criminal justice goals that were antithetical to the
objectives of many of the Act’s liberal supporters.6 The fact that liberals
undermined many of their long-term interests by cooperating with
conservatives raises two foundational questions: why were liberals’
expectations for sentencing reform so misguided, and were the liberals
irrational to ally themselves with parties that did not share their long-term
goals? This Article examines whether cultural cognition theory can provide
some clues as to why opposing parties might form ill-conceived coalitions
when their interests diverge.
1. Representative Charles F. Bass, Statement on National Security and Job Protection Act
(Sept. 13, 2012) (transcript available at Targeted News Service).
2. JOHN WOODEN & STEVE JAMISON, WOODEN: A LIFETIME OF OBSERVATIONS AND
REFLECTIONS ON AND OFF THE COURT 199 (1997).
3. See infra introduction to Part III.
4. See Michael Vitiello, Sentencing Guideline Law and Practice in a Post-Booker World:
Introduction, 37 MCGEORGE L. REV. 487, 490 (2006) (“Beginning in the 1970s, a coalition of
liberal and conservative commentators mounted a challenge to t he dominant indeterminate
sentencing model in effect in the United States at that time.”). See generally Kate Stith & Steve Y.
Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28
WAKE FOREST L. REV. 223 (1993) (describing the political history of the Sentencing Reform Act
of 1984).
5. Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. 2, 98 Stat. 1987.
6. Stith & Koh, supra note 4, at 282 (“[M]uch of the criticism [of federal sentencing
reform] is from the political left, including defense attorneys and scholars who had been early
and enthusiastic proponents of binding sentencing guidelines. ”); see also Albert W. Alschuler,
The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 933–34
(1991) (describing how liberal supporters of sentencing reform “[sold] the farm”); Gerald F.
Uelmen, Federal Sentencing Guidelines: A Cure Worse than the Disease, 29 AM. CRIM. L. REV. 899, 899
(1992) (“The Federal Sentencing Commission, and the Congress which created it, simply are
not getting the message, although the message could not be clearer: Your cure is worse than the
disease.”).

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