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Articles 1 - 30 of 282
Full-Text Articles in Law
Redistributing Justice, Benjamin Levin, Kate Levine
Redistributing Justice, Benjamin Levin, Kate Levine
Faculty Articles
This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.
In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …
The Unconstitutionality Of Underfunded Public Defender Systems, Braden Daniels
The Unconstitutionality Of Underfunded Public Defender Systems, Braden Daniels
Senior Honors Theses
When a defendant is ineffectively represented by a public defender due to an underfunded public defender system, a defendant whose public defender provides him only cursory representation is entitled to a new trial only if blatantly innocent. The U.S. Supreme Court should follow its precedent and declare systemically underfunded public defender systems unconstitutional, with cases meriting reversal when the underfunding is to blame for unreasonable attorney errors, regardless of prejudice. This stems logically from the Court’s holdings in Gideon v. Wainwright, Strickland v. Washington, and United States v. Cronic. Many have argued for the reversal or modification …
U.S. Judiciary Syllabus: True True Crime Zines, Jason Leggett
U.S. Judiciary Syllabus: True True Crime Zines, Jason Leggett
Open Educational Resources
An experimental, open education syllabus for a pilot zero textbook cost course, U.S. Judiciary using zines and true crime.
Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli
Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli
Faculty Journal Articles and Book Chapters
Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.
I therefore propose that the …
Criminal Law's Hidden Consensus, Steven Arrigg Koh
Criminal Law's Hidden Consensus, Steven Arrigg Koh
Faculty Scholarship
American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …
Meet Our New Faculty: Yvette Butler, James Owsley Boyd
Meet Our New Faculty: Yvette Butler, James Owsley Boyd
Keep Up With the Latest News from the Law School (blog)
Associate Professor Yvette T. Butler joined the Indiana Law faculty this summer. She earned an undergraduate degree from the University of Minnesota, Morris, and her law degree from The George Washington University Law School.
Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle
Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle
Faculty Scholarship
This paper tackles a difficult legal and policy challenge—reducing the impact of criminal justice records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …
With Liberty And Justice For The Wealthy: The Criminalization Of The American Poor, Ashlyn Dickmeyer
With Liberty And Justice For The Wealthy: The Criminalization Of The American Poor, Ashlyn Dickmeyer
Honors Theses
The last phrase of the Pledge of Allegiance states “with liberty and justice for all”. However, not everyone has access to this liberty and justice. Liberty and justice can be bought in this country for a price, and those who can’t afford to pay it are often left in the hands of those who can. One of the most prominent ways to see this is by analyzing the criminal justice system. Despite clauses in the Fourteenth Amendment and court cases like Gideon v. Wainwright (1963) establishing and upholding that the poor are entitled to equal treatment within the criminal justice …
As Long As There Is Money Involved In Justice, There Will Be No Justice: The United States' Criminalization Of Poverty And The Need To Demonitize Our Criminal "Justice" System, Amanda Piccione
Hofstra Law Student Works
This paper will show how the United States will fail to achieve a criminal “justice” system if money is involved. The cyclical impacts of poverty and marginalization on communities of color throughout our nation’s history will continuously perpetuate an unequal and unfair criminal system. Section II begins by delving into the history of poverty in the United States. It then analyzes poverty and its impacts today while specifically discussing the effects on communities of color and the intersections with crime. Section III examines the legal issue, exploring our monetized legal system and discussing how we can change our criminal legal …
Surveillance Normalization, Christian Sundquist
Surveillance Normalization, Christian Sundquist
Articles
Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …
Bail And Mental Illness, Samuel Wiseman
Bail And Mental Illness, Samuel Wiseman
Journal Articles
In many parts of the United States, the bail system is strikingly unfair, imposing burdensome, and often unmeetable, financial conditions on pretrial liberty even for low-risk defendants. Reforms that reduce or eliminate cash bail and lower pretrial detention rates have made progress in recent years, but now face growing opposition even in generally progressive jurisdictions such as San Francisco and New York City. One source of this opposition is rising concern about crime—particularly crime associated with the unhoused, who disproportionately suffer from mental illness, including substance abuse disorder. This is not a coincidence, as one effect of a cash-bail system, …
A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann
A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann
Scholarly Works
This essay appears as the Afterword (pp. 55-64) to a volume featuring an important work by the late Mireille Delmas-Marty (1941-2022) titled A Compass of Possibilities: Global Governance and Legal Humanism. A Collège de France de Paris law professor and one of the pre-eminent legal thinkers of her generation, Delmas-Marty and the essay’s author were longtime colleagues and collaborators. The volume contains an English translation of a 2011 lecture by Delmas-Marty, originally titled “Une boussole des possibles: Gouvernance mondiale et humanismes juridiques.” Amann’s essay surveys that writing, in a manner designed to acquaint non-francophone lawyers and academics with Delmas-Marty’s …
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
Scholarly Works
This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …
The (Immediate) Future Of Prosecution, Daniel C. Richman
The (Immediate) Future Of Prosecution, Daniel C. Richman
Faculty Scholarship
Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …
How The “Black Criminal” Stereotype Shapes Black People’S Psychological Experience Of Policing: Evidence Of Stereotype Threat And Remaining Questions, Cynthia J. Najdowski
How The “Black Criminal” Stereotype Shapes Black People’S Psychological Experience Of Policing: Evidence Of Stereotype Threat And Remaining Questions, Cynthia J. Najdowski
Psychology Faculty Scholarship
Cultural stereotypes that link Black race to crime in the U.S. originated in and are perpetuated by policies that result in the disproportionate criminalization and punishment of Black people. The scientific record is replete with evidence that these stereotypes impact perceivers’ perceptions, information processing, and decision-making in ways that produce more negative criminal legal outcomes for Black people than White people. However, relatively scant attention has been paid to understanding how situations that present a risk of being evaluated through the lens of crime-related stereotypes also directly affect Black people. In this article, I consider one situation in particular: encounters …
The Ukraine Crisis And The Future Of International Courts And Tribunals, Milena Sterio
The Ukraine Crisis And The Future Of International Courts And Tribunals, Milena Sterio
Law Faculty Articles and Essays
The Ukraine crisis is an example of modern-day conflict which poses various accountability challenges and demonstrates that not a single existing prosecutorial mechanism is capable of achieving a full measure of accountability while fulfilling the different goals of international criminal justice. As discussed in this Article, the prosecution of a sufficient number of Russian perpetrators of atrocities, as well as of Russian leaders, conducted legitimately and effectively, will necessitate the utilization of almost all accountability models - Ukrainian courts, a war crime chamber, the ICC, as well as an ad hoc aggression tribunal. The Ukrainian crisis demonstrates that all international …
How Victim Impact Statements Promote Justice: Evidence From The Content Of Statements Delivered In Larry Nassar's Sentencing, Paul Cassell, Edna Erez
How Victim Impact Statements Promote Justice: Evidence From The Content Of Statements Delivered In Larry Nassar's Sentencing, Paul Cassell, Edna Erez
Utah Law Faculty Scholarship
Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of …
Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith
Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith
Congressional and Other Testimony
This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.
Forks Over Knives: Predictive Inconsistency In Criminal Justice Algorithmic Risk Assessment Tools, Travis Greene, Galit Shmueli, Jan Fell, Ching-Fu Lin, Han-Wei Liu
Forks Over Knives: Predictive Inconsistency In Criminal Justice Algorithmic Risk Assessment Tools, Travis Greene, Galit Shmueli, Jan Fell, Ching-Fu Lin, Han-Wei Liu
Research Collection Yong Pung How School Of Law
Big data and algorithmic risk prediction tools promise to improve criminal justice systems by reducing human biases and inconsistencies in decision-making. Yet different, equally justifiable choices when developing, testing and deploying these socio-technical tools can lead to disparate predicted risk scores for the same individual. Synthesising diverse perspectives from machine learning, statistics, sociology, criminology, law, philosophy and economics, we conceptualise this phenomenon as predictive inconsistency. We describe sources of predictive inconsistency at different stages of algorithmic risk assessment tool development and deployment and consider how future technological developments may amplify predictive inconsistency. We argue, however, that in a diverse and …
Courts Without Court, Andrew Guthrie Ferguson
Courts Without Court, Andrew Guthrie Ferguson
Articles in Law Reviews & Other Academic Journals
What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …
War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson
War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
On May 24, 20022, the Washington Post carried front-page news that a court in Ukraine had sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life imprisonment for the war crime of premeditated murder of a civilian, 62-year-old Oleksandr Shelipov. The session was the first war crimes trial in Ukraine since Russia's invasion three months earlier.
Examining Legal Financial Obligations In Washington State, Bryan Lewis
Examining Legal Financial Obligations In Washington State, Bryan Lewis
PPPA Paper Prize
After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …
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 …
Building Fierce Empathy, Binny Miller
Building Fierce Empathy, Binny Miller
Articles in Law Reviews & Other Academic Journals
In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …
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 …
A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson
A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson
Psychology Faculty Scholarship
Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …
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 …
Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton
Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton
Articles in Law Reviews & Other Academic Journals
Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …
“Cancel Culture” And Criminal Justice, Steven Arrigg Koh
“Cancel Culture” And Criminal Justice, Steven Arrigg Koh
Faculty Scholarship
This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …
Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, E. Lea Johnston
Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, E. Lea Johnston
UF Law Faculty Publications
Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …