Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Boston University School of Law (4)
- Northwestern Pritzker School of Law (4)
- American University Washington College of Law (2)
- California Western School of Law (1)
- Notre Dame Law School (1)
-
- Pace University (1)
- Penn State Law (1)
- St. Mary's University (1)
- Texas A&M University School of Law (1)
- University of Colorado Law School (1)
- University of Maryland Francis King Carey School of Law (1)
- University of New Mexico (1)
- University of Pennsylvania Carey Law School (1)
- Vanderbilt University Law School (1)
- Yeshiva University, Cardozo School of Law (1)
- Publication
- Publication Type
Articles 1 - 22 of 22
Full-Text Articles in Entire DC Network
Countermajoritarian Criminal Law, Michael L. Smith
Countermajoritarian Criminal Law, Michael L. Smith
Pace Law Review
Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.
This Article adds to and amplifies this criticism by …
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Faculty Scholarship
March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …
Ethical Ai In American Policing, Elizabeth E. Joh
Ethical Ai In American Policing, Elizabeth E. Joh
Notre Dame Journal on Emerging Technologies
We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating …
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Faculty Scholarship
In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …
Losing Someone Then Losing Yourself: Helping Juveniles In The Justice System Experiencing Grief With A Trauma-Informed Pretrial Diversion Program, Sydney Ford
JCLC Online
Grief is something we all experience at some point in our lives. When a child experiences grief and loss, those emotions, if not addressed, can cause adverse effects. Many of our country’s detained youth have fallen victim to these effects because they have been unable to address the underlying grief that causes their behaviors. Because of this, this Article advocates for creating a trauma-informed pretrial diversion program focused on helping grieving youth. First, this Article examines the overwhelming number of grieving children in our juvenile justice system, and how their grief has led them to where they are today. Second, …
Stated Culpability Requirements, Scott England
Stated Culpability Requirements, Scott England
Faculty Scholarship
This Article comprehensively reviews the law of stated culpability requirements in Model Penal Code (MPC) jurisdictions. Part I provides an overview of section 2.02(4), explaining how the provision works and its role in the MPC’s culpability scheme. Part II then identifies section 2.02(4)’s main weaknesses, drawing on both the provision itself and the Code’s commentary. Next, Part III reviews the law in the twenty-five states with culpability provisions influenced by the MPC, identifying specific problems that section 2.02(4) has created in the case law. Finally, Part IV recommends new stated-culpability rules that improve section 2.02(4) and more rigorously enforce the …
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
JCLC Online
This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …
Bargaining For Abolition, Zohra Ahmed
Bargaining For Abolition, Zohra Ahmed
Faculty Scholarship
What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.1 Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.2 The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …
Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson
Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson
Faculty Scholarship
Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …
The Progressive Love Affair With The Carceral State, Kate Levine
The Progressive Love Affair With The Carceral State, Kate Levine
Faculty Articles
A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.
The Democratizing Potential Of Algorithms?, Ngozi Okidegbe
The Democratizing Potential Of Algorithms?, Ngozi Okidegbe
Faculty Scholarship
Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …
Internal And External Challenges To Culpability, Stephen J. Morse
Internal And External Challenges To Culpability, Stephen J. Morse
All Faculty Scholarship
This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.
The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …
Citizen's Arrest And Race, Ira P. Robbins
Citizen's Arrest And Race, Ira P. Robbins
Articles in Law Reviews & Other Academic Journals
I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …
Drug Supervision, Jacob Schuman
Drug Supervision, Jacob Schuman
Journal Articles
Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.
In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …
Gambling On The Blockchain: How The Unlawful Internet Gambling Enforcement Act Has Opened The Door For Offshore Crypto Casinos, Samuel H. Brown Vii
Gambling On The Blockchain: How The Unlawful Internet Gambling Enforcement Act Has Opened The Door For Offshore Crypto Casinos, Samuel H. Brown Vii
Vanderbilt Journal of Entertainment & Technology Law
Online cryptocurrency casinos have seen a dramatic rise in popularity over the past thirty years as the rate of ownership of cryptocurrencies has risen almost as quickly as the US monetary value of a single Bitcoin. Current US laws and regulations are outdated; the only piece of federal legislation that provides oversight in the area of virtual gambling originated in 2006, more than fifteen years before the publication of this Note. Previous scholarship suggests that a lack of federal action has resulted in a surge of criminal activity, such as money laundering and tax evasion, as well as significant missed …
Against Criminal Law Localism, Brenner M. Fissell
Against Criminal Law Localism, Brenner M. Fissell
Maryland Law Review
No abstract provided.
Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis
Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis
Journal of Criminal Law and Criminology
Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …
The Perils Of Private Prosecutions, Angela J. Davis
The Perils Of Private Prosecutions, Angela J. Davis
Articles in Law Reviews & Other Academic Journals
In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.
Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …
Of Afrofuturism, Of Algorithms, Ngozi Okidegbe
Of Afrofuturism, Of Algorithms, Ngozi Okidegbe
Faculty Scholarship
Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …
Rethinking Prison For Non-Violent Gun Possession, Robert Weiss
Rethinking Prison For Non-Violent Gun Possession, Robert Weiss
Journal of Criminal Law and Criminology
Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop …
Victims’ Rights Revisited, Benjamin Levin
Victims’ Rights Revisited, Benjamin Levin
Publications
This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …
Countermajoritarian Criminal Law, Michael L. Smith
Countermajoritarian Criminal Law, Michael L. Smith
Faculty Articles
Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.
This Article adds to and amplifies this criticism by …