Geography and justice: why prison location matters in U.S. and international theories of criminal punishment.

• Author: Koh, Steven Arrigg
• Position: I. Introduction through III. The International Prison Designation Paradigm B. Prison Designation Procedures of the ICC, ICTY, and ICTR 2. Sentencing Designation Procedures of the ICTY, p. 1267-1291

ABSTRACT

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures--the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence. This Article identifies this gap in the literature--the prison location omission--and fills it from three different vantage points: (1) U.S. procedural provisions governing prison designation; (2) international procedural provisions governing prison designation; and (3) the relationship between imprisonment and broader theories of criminal punishment. Through comparison of U.S. and international prison designation systems, this Article argues that prison location materially advances core rationales of criminal punishment.

TABLE OF CONTENTS I. INTRODUCTION A. The Prison Location Omission in Current Scholarship B. The Benefit of International Comparison II. THE U.S. PRISON DESIGNATION PARADIGM A. Prison Designation Procedures in the U.S. Federal System 1. Statutory Framework 2. Designation Practice of the BOP B. Analysis: The U.S. Prison Designation Paradigm III. THE INTERNATIONAL PRISON DESIGNATION PARADIGM A. The International Criminal Tribunals: A Brief Overview B. Prison Designation Procedures of the ICC, ICTY, and ICTR 1. Sentencing Designation Procedures of the ICC 2. Sentencing Designation Procedures of the ICTY 3. Sentencing Designation Procedures of the ICTR C. Analysis: The International Prison Designation Paradigm IV. COMPARISON OF V.S. AND INTERNATIONAL PRISON DESIGNATION PARADIGMS V. WHY PRISON LOCATION MATTERS IN THEORIES OF CRIMINAL PUNISHMENT A. Deterrence B. Retribution C. Incapacitation D. Rehabilitation E. Victim-Related Rationales F. Transitional Justice VI. CONCLUSION I. INTRODUCTION

Sentencing constitutes the backbone of criminal justice, the culmination of criminal adjudication. (1) Indeed, the criminal justice system inflicts pain--in the form of deprivation of life, liberty, or property--on those convicted of criminal conduct. (2) Where a prisoner serves time often crucially determines how much of a deprivation he or she will suffer, yet academic literature has neglected this crucial sentencing component. (3) Indeed, scholars have never systematically reviewed prison designation procedures--the procedures by which a court or other institution designates the prison facility in which a convict will serve his or her sentence--at the state, federal, or international levels. Furthermore, commentators have failed to analyze how prison location advances the broader goals of criminal justice--deterrence, retribution, incapacitation, and rehabilitation--as well as emerging theories of victim-related "restorative justice" and "transitional justice." Regrettably, most scholarship singularly focuses on prison duration as the defining aspect of a sentence, although prison location may be as, if not more, important to the retributive or deterrent effect of a sentence. For example, had Osama bin Laden been captured, convicted of crimes, and sentenced to a term of imprisonment, it would have undoubtedly mattered whether he served his time in New York, The Hague, Saudi Arabia, or elsewhere.

This Article contends that prison location itself endows a sentence with additional meaning that in turn advances overarching theories of criminal punishment, such as deterrence to the individual and the community, incapacitation of the offender, and the provision of justice to victims. The Article reviews both U.S. federal and international prison designation procedures and then compares the essential features of these U.S. and international prison designation paradigms in an effort to contribute to criminal law theory, American criminal legal studies, and international criminal legal studies.

1. The Prison Location Omission in Current Scholarship

   Simply put, scholarship undervalues prison location. This Article hereinafter uses the term prison location omission to denote the gap in scholarly attention to the procedures by which prison facilities are designated and the way such locations fulfill the broader goals of criminal punishment.

   This prison location omission reveals itself throughout U.S. scholarship on criminal sentencing. Often, sentencing articles have focused on the duration of sentences, (4) as well as the reasoning underlying sentencing decisions (5) or the use of private prisons in the state and federal system. (6) Indeed, one commentator has underscored the centrality of sentence duration as a yardstick for measuring retribution:

   The length of a term of imprisonment is, obviously, not the only possible indicator of retributive value. Nor is it evidence that the mere addition of several years to a sentence necessarily augments its retributive force; or that shortening a sentence by several years guts that force. However, length of a sentence constitutes the central--and, basically, only--measurement device that liberal legalist institutions practically avail themselves of when it comes to operationalizing punishment in extant sentencing frameworks. (7) In this commentator's submission, sentence length is the sole means of gauging the retributive nature of a sentence. Furthermore, with regard to deterrence, another commentator has similarly noted that "there has been no systematic attempt to estimate the deterrent effect of punitiveness other than incarceration length." (8)

   The prison designation omission may owe itself to the visibility of sentence duration, which is often delivered by a federal judge or jury. This prominent aspect of criminal sentencing thus gains academic traction, along with other salient procedural aspects such as, say, the Miranda rights of a criminal suspect. As such, scholars have completely neglected the prison designation process, which falls under the exclusive authority of a subdivision of the U.S. Department of Justice (DOJ). Existing literature only tangentially refers to the plain statutory designation language en route to an argument unrelated to imprisonment location. (9,10) Indeed, the Bureau of Prisons' (BOP) Program Statement regarding prison designation--the primary source for every prison designation at the federal level--has never received substantial scrutiny. (11)

   Though more scholars have considered international designation procedures, (12) the prison location omission also manifests itself in international legal scholarship. (13) Each relevant article reviews designation procedures within the context of one particular tribunal; there has been little to no comparative work describing the overall framework of international prison designation nor any contemplation of the relationship between prison location and...