Professor shares tough issues of criminal law with students

By Sheila Pursglove
Legal News

Part of what’s fascinating about criminal law is trying to define its domain, according to J.J. Prescott, a professor at the University of Michigan Law School.

“Why are some ‘bad’ behaviors considered criminal, while others are simply civil wrongs, or moral wrongs? This is an age-old challenge, one that will never be resolved,” he says.

Criminal law – and employment law, which Prescott also teaches – can be thought of as sets of policies or doctrines designed to deal with specific social problems, he contends.
“Once we know what behavior or harm we wish to minimize or eliminate, the question becomes, what combinations of policies allow us to make improvements at the lowest overall social cost?”

Social costs, he adds, broadly include losses due to unfairness as well as errors in outcomes – in terms of people being wrongly convicted, criminals not being caught, or sentences being inappropriate for some other reason.

“If a legal system generates too many of these errors or too much delay, it will lose legitimacy and become even less effective,” he explains.

Prescott notes there are also important indirect social costs that emerge from systems that are poorly designed or prone to error.

“In the criminal law context, for example, law-abiding citizens may change their behavior, usually at some cost to themselves or society, to avoid the possibility of being confused for criminals. Ideally, the law should avoid ‘chilling’ lawful, productive behavior. Likewise, in the employment law context, inadequate substantive and procedural law can lead to suboptimal investments in education and training.”

Employment law differs from criminal law in that it regulates, typically, a long-term relationship – employment – between two or more parties.

“One might think there’s no reason whatsoever for specialized ‘law’ when an employee and employer might be able to work it out between themselves, and indeed, in many areas, there isn’t – the law of contracts pervades,” he says. “But, the market doesn’t always work very well... the law can protect vulnerable third parties and make everyone, including employers, better off.”

Nevertheless, as a form of substantive regulation of behavior, employment law is much more hands-off than criminal law. While the government sets some of the “rules of the game,” many of these can be waived or traded-away, Prescott says.

“Among the exceptions to this norm are anti-discrimination laws, which are typically mandatory prohibitions,” he says. “Even so, when discrimination does occur, it’s usually up to a wronged individual, not the state, to enforce his or her rights by filing a complaint.”

Prescott thinks the law plays a big part in setting the stage for human decision-making.

“We can’t change the law of gravity or how fast we can think or run – not yet – but we can change the environment in which we make decisions – to go to school, to have a family, to work hard, invest in a business, to forgo committing crimes – by changing the law,” he says. “Substantive law is the most obvious way this happens, but procedural law accomplishes the same indirectly by making substantive law more or less difficult to use.”

Prescott’s current research includes an examination of the effects of sex offender registration and notification laws on the frequency and incidence of sex crimes; a project exploring the unintended consequences of retaliation as a cause of action in anti-discrimination law; an empirical evaluation of the effects of prosecutor race and sex on charging and sentencing outcomes using a unique data set from New Orleans; a study of the socio-economic consequences of criminal record expungement using micro-level data from Michigan; and a paper that develops a theoretical model to explain the use of high-low agreements in civil litigation and tests the model’s predictions using detailed insurance data.

Relative to the rest of criminal law, sex offender registration and other sex offender post-release rules are new and novel, Prescott says.

“These laws get a ton of press and people have very strong feelings about sex offenders generally and the threats they may pose. But, there is really very little evidence to support using registration and notification laws to reduce crime.

“At first blush, registration and notification make some sense as a way to reduce recidivism,” Prescott says. “‘Let’s just watch these guys very closely.’ But, what policymakers have forgotten is that recidivism often has much more to do with whether released offenders can build new, rewarding lives; they must become invested in society and in law-abiding behavior. If ‘watching people closely’ translates, in reality, to shame, isolation, and poverty, the question becomes a much less optimistic one—whether these laws can work so well that they can stop someone with nothing to lose from returning to crime.

“When you think about it that way, registration and notification seem less wise. If we... make released sex offenders desperate, unemployed, lonely, and isolated in the process of watching them, we may wind up less safe with these laws in place.”

Prescott, who joined the U-M faculty in June 2006, enjoys working with others, and the back-and-forth of teaching law.

“A lot of my research is collaborative,” he says. “And I generally believe teaching is a two-way exchange – I learn a lot from the students, and I hope they learn a great deal from me. It’s incredibly rewarding to watch the light bulbs of new law students, in particular, pop on as they start to grasp how this ‘law stuff’ actually works.

“Teaching at U-M is a joy because the students are great – extremely smart and tuned in, not just to classes, but the world. The law school is incredibly collegial, both horizontally with other faculty, and vertically with the students, and I spend a lot more time with my students than I ever spent with my professors when I was a law student.”
Prescott feels the future looks bright for his students.

“In criminal law, there’s been less turbulence than in other areas,” he says. “Employment law is often practiced outside of the largest firms, and so there, too, students are doing better. On the whole, while the legal market is still weak, U-M students are by and large doing well.”

Prescott spent his own student days at Stanford University where he received a double B.A. with honors and distinction in economics and public policy; and Harvard Law School, where he earned his degree, magna cum laude, in 2002, and was the treasurer and an editor of The Harvard Law Review. He was a Research Fellow at Harvard Law School 2003-04, a Special Guest at the Brookings Institution (Economic Studies) in D.C. 2004-05, and a Research Fellow at Georgetown University Law Center from 2004-06.
After clerking for Judge Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit, he went on to earn a Ph.D. in economics from the Massachusetts Institute of Technology in 2006.

Drawn to economics by an interest in public policy as well as a deeper curiosity about how people tick, as individuals and as a society, Prescott uses the term “economics” very broadly to encompass the study of behavior, whether of people or organizations.

“Once you have a grasp – or at least a hypothesis – about how an individual or an organization will respond to a choice or a new environment, you can then begin to think about policy or law as providing a particular ‘environment’ in which people make decisions,” he says.

“If we can agree on what society values – a big if – and if we know, or can make an educated guess about, how people will react individually or collectively to a range of different legal environments, it may be possible to make the world a better place by building the right one.”

A native of Yorba Linda in southern California, Prescott has adopted the Great Lakes State as his own.

“I adore it here,” he says.

He and his wife Sarah, a civil rights lawyer at Deborah Gordon, LLC, in Bloomfield Hills, make their home in Northville, with their 2-year-old daughter, Annelise, and 11-month-old son, Alexander.

In his leisure time, Prescott enjoys reading, movies, gadgets, spending time with the family, and home maintenance.

“The addition of the last category was unexpected, to be sure,” he says with a smile.

Travel is a passion, whether exploring Detroit and the rest of the mitten, or overseas.

“I’ve been thinking about how wise it was for me to visit Syria on vacation a few years back,” he says. “Not sure when that will be possible again.”