Law Commons^™

Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Juries, Democracy, And Petty Crime, John D. King

Scholarly Articles

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy. The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury. Despite the textual clarity of the guarantee, the Supreme Court has long recognized …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson

Utah Law Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

Victims, Right?, Anna Roberts

Faculty Publications

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks …

Dividing Bail Reform, Shima Baughman

Utah Law Faculty Scholarship

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. …

Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti

Faculty Scholarship

When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last decade, a new push for criminal justice reform has taken hold. While the moral and fiscal costs have been exorbitant over the last forty years, failing state budgets and bipartisan recognition of the “broken” system have finally caused legislatures, politicians, and advocates to reassess the costs and benefits of the criminal justice system. Breaking the “tough on crime/soft on crime” binary, the “smart on crime” motto has become a helpful tool in reform efforts aimed at reducing the number of individuals incarcerated and ensuring its fairness, regardless of race and socioeconomic status. Little attention, however, has been …

Punishment, Liberalism, And Public Reason, Chad Flanders

All Faculty Scholarship

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

The Languishing Public Safety Doctrine, Brian Gallini

School of Law Faculty Publications and Presentations

Every semester, law students across the country read New York v. Quarles in criminal procedure. The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona. But at the time of Quarles’s issuance, no one could have predicted just how long it would sit untouched by the Supreme Court. Application of Quarles to high profile defendants like James Holmes and Dzhokhar Tsarnaev illustrate the need for more clarity in the context of applying the public safety exception.Mores specifically, those cases demonstrate why the Supreme Court needs to re-examine …

Trending @ Rwu Law: Vanessa Rodriguez's Post: Clinics Collaborate On 'Crimmigration': 04/19/2016, Vanessa Rodriguez

Law School Blogs

No abstract provided.

Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan

Faculty Scholarship

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a …

Book Review, Angela Mae Kupenda

Journal Articles

Racial Reckoning: Prosecuting America’s Civil Rights Murders is an exceptional work by Renee C. Romano. This review will first discuss a concern I had prior to reading her book. Discussion of this alleviated concern will be followed by brief consideration of Romano’s well selected titled, which will be followed by a discussion of what I see as major contributions of the book.

Discounting And Criminals' Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

All Faculty Scholarship

It is commonly assumed that potential offenders are more responsive to increases in the certainty than increases in the severity of punishment. An important implication of this assumption within the Beckerian law enforcement model is that criminals are risk-seeking. This note adds to existing literature by showing that offenders who discount future monetary benefits can be more responsive to the certainty rather than the severity of punishment, even when they are risk averse, and even when their disutility from imprisonment rises proportionally (or more than proportionally) with the length of the sentence.

Empirical Law And Economics, Jonah B. Gelbach, Jonathan Klick

All Faculty Scholarship

Empirical work has grown in importance in law and economics. This growth coincides with improvements in research designs in empirical microeconomics more generally. In this essay, we provide a stylized discussion of some trends over the last two or three decades, linking the credibility revolution in empirical micro to the ascendancy of empirical work in law and economics. We then provide some methodological observations about a number of commonly used approaches to estimating policy effects. The literature on the economics of crime and criminal procedure illustrates the ways in which many of these techniques have been used successfully. Other fields, …

Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber

Publications

No abstract provided.

Is Emerging Adulthood Influencing Moffitt’S Developmental Taxonomy? Adding The “Prolonged” Adolescent Offender, Christopher Salvatore, Travis A. Taniguchi, Wayne Welsh

Department of Justice Studies Faculty Scholarship and Creative Works

The study of offender trajectories has been a prolific area of criminological research. However, few studies have incorporated the influence of emerging adulthood, a recently identified stage of the life course, on offending trajectories. The present study addressed this shortcoming by introducing the "prolonged adolescent" offender, a low-level offender between the ages of 18 and 25 that has failed to successfully transition into adult social roles. A theoretical background based on prior research in life-course criminology and emerging adulthood is presented. Using data from the National Longitudinal Study of Adolescent Health analyses examined the relationship between indicators of traditional turning …

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

The Model Federal Sentencing Guidelines Project: Departures, Model Sentencing Guidelines §5.1, Frank O. Bowman Iii

Faculty Publications

This Article is the twelfth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929. This segment of the project contains rules governing the imposition of sentences …

The Model Federal Sentencing Guidelines Project: A Simplified Economic Crimes Guideline, Model Sentencing Guidelines §2b1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the third of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

The Year Of Jubilee Or Maybe Not: Some Preliminary Observations About The Operation Of The Federal Sentencing System After Booker, Frank O. Bowman Iii

Faculty Publications

This segment of the project contains the offense seriousness portion of the simplified sentencing table employed in the Model Sentencing Guidelines. The Article also contains drafter's commentary explaining the offense seriousness scale of the table, how it interacts with other portions of the Model Guidelines, and the policy choices behind the simplified table.

Public Attitudes About The Culpability And Punishment Of Young Offenders, Elizabeth S. Scott, N. Dickon Reppucci, Jill Antonishak, Jennifer T. Degennaro

Faculty Scholarship

Conventional wisdom holds that the public supports harsh punishment of juvenile offenders, and politicians often argue that the public demands tough policies. But public opinion is usually gauged through simplistic polls, often conducted in the wake of highly publicized violent crimes by juveniles. This study seeks to probe public opinion about the culpability of young offenders as compared to adult counterparts through more nuanced and comprehensive measures in a neutral setting (i.e. not in response to a high profile crime or during a political campaign when the media focuses on the issue). The opinions of 788 community adults were individually …

The Model Federal Sentencing Guidelines Project: Sentencing Factors Applicable To All Offense Types, Model Sentencing Guidelines §3.1 - 3.6, Frank O. Bowman Iii

Faculty Publications

This Article is the ninth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines.