By David Macdonald

Truth in Sentencing laws eliminates discretion in prison release. This decreases the incentive for rehabilitative effort among prisoners. I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona. Before prison, I found that sentences were reduced by 20% for TIS offenders. Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%. After release, I found offenders were 4.8 p.p. more likely to re-offend. I further find that recidivism and infraction effects are largest among drug and violent offenders. Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

Unpublished paper, 2024. 84p.

By Lee Kovarsky

There is a widely held belief that to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, that the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies. In this article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

New York University Law Review Issue: Volume 95, Number 5, November 2020