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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.
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 …
Prosecutorial Declination Statements, Jessica A. Roth
Prosecutorial Declination Statements, Jessica A. Roth
Faculty Articles
This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …
The Culture Of Misdemeanor Courts, Jessica A. Roth
The Culture Of Misdemeanor Courts, Jessica A. Roth
Faculty Articles
The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can …
The Necessity Of The Good Person Prosecutor, Jessica A. Roth
The Necessity Of The Good Person Prosecutor, Jessica A. Roth
Faculty Articles
In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor.
Alternative Elements, Jessica A. Roth
Alternative Elements, Jessica A. Roth
Faculty Articles
The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …
Solving The Apprendi Puzzle, Kyron Huigens
Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld
Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld
Faculty Articles
By monitoring and investigating errors in the criminal justice system, innocence commissions could help remedy systemic defects that bring about wrongful convictions.
Structures Of Environmental Criminal Enforcement, Michael Herz
Structures Of Environmental Criminal Enforcement, Michael Herz
Faculty Articles
No abstract provided.
Virtue And Inculpation, Kyron J. Huigens
Virtue And Inculpation, Kyron J. Huigens
Faculty Articles
This article sets forth a general theory of the justification of legal punishment based on virtue ethics and republican political theory. Criminal law serves not only to deter and take retribution, but also to inculcate virtue. This theory explains why, for example, people do not consciously abide by law. They just do, because they have no desire to do things that are contrary to the criminal law. This conception of virtue as well-ordered desire is distinctively Aristotelian. The political justification for inculcating virtue by means of criminal law is the classic republican conception of government as being devoted specifically to …
The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing
The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing
Faculty Articles
No abstract provided.
Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam
Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam
Faculty Articles
This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.