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Articles 1 - 30 of 55
Full-Text Articles in Entire DC Network
Proportionalities, Youngjae Lee
Proportionalities, Youngjae Lee
Notre Dame Law Review Reflection
“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …
How Do Prosecutors "Send A Message"?, Steven Arrigg Koh
How Do Prosecutors "Send A Message"?, Steven Arrigg Koh
Faculty Scholarship
The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.
Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …
Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh
Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh
Faculty Scholarship
Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.22 There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.23 These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and …
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 …
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 …
Criminal Law Exceptionalism, Benjamin Levin
Criminal Law Exceptionalism, Benjamin Levin
Publications
For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …
Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan
Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan
Touro Law Review
Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …
Wage Theft Criminalization, Benjamin Levin
Wage Theft Criminalization, Benjamin Levin
Publications
Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …
Design Justice In Municipal Criminal Regulation, Amber Baylor
Design Justice In Municipal Criminal Regulation, Amber Baylor
Faculty Scholarship
This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of …
Entitlement To Punishment, Kyron J. Huigens
Entitlement To Punishment, Kyron J. Huigens
Faculty Articles
This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.
An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …
Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis
Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis
Dickinson Law Review (2017-Present)
Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.
Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …
Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood
Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood
Georgetown Law Faculty Publications and Other Works
In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.
First, I argue that federal courts should apply the historical rule of lenity (also known as the rule …
The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn
The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn
Loyola of Los Angeles Law Review
No abstract provided.
Mens Rea Reform And Its Discontents, Benjamin Levin
Mens Rea Reform And Its Discontents, Benjamin Levin
Publications
This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …
Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe
Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe
Articles & Chapters
After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …
Obscured Boundaries: Dimaya's Expansion Of The Void-For-Vagueness Doctrine, Katherine Brosamle
Obscured Boundaries: Dimaya's Expansion Of The Void-For-Vagueness Doctrine, Katherine Brosamle
Loyola of Los Angeles Law Review
No abstract provided.
Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin
Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin
Publications
This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.
Specifically, I trace two themes in the book:
(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and
(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.
I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …
Criminal Employment Law, Benjamin Levin
Criminal Employment Law, Benjamin Levin
Publications
This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …
The Consensus Myth In Criminal Justice Reform, Benjamin Levin
The Consensus Myth In Criminal Justice Reform, Benjamin Levin
Publications
It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.
The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …
A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson
A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson
All Faculty Scholarship
This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible …
Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello
Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello
Akron Law Review
Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Amy J. Sepinwall
Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams
Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams
Touro Law Review
No abstract provided.
The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber
The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber
Publications
No abstract provided.
Shredded Fish Redux, Robert Sanger
Shredded Fish Redux, Robert Sanger
Robert M. Sanger
The Yates case, in which certiorari had been granted to the United States Court of Appeals for the Eleventh Circuit had been discussed in a previous column of Criminal Justice. The article was entitled “Shredded Fish” because the sea captain in Yates was prosecuted under the document shredding provisions of the Sarbanes-Oxley Act of 2002 for destroying fish. That case has now been decided by the United States Supreme Court in Yates v. United States, on February 25, 2015. The case involves the rule of lenity as well as a discussion of overcriminalization.
An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone
Faculty Scholarship
No abstract provided.
When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber
When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber
Publications
Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Sarah Mourer
This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …
Furman, After Four Decades, J. Thomas Sullivan
Furman, After Four Decades, J. Thomas Sullivan
University of Massachusetts Law Review
Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the …
The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton
The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton
Richard Broughton
Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …