Law Commons^™

If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello

Northwestern Journal of Law & Social Policy

No abstract provided.

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

The Downstream Effects Of Bail And Pretrial Detention On Racial Disparities In Incarceration, Ellen A. Donnelly, John M. Macdonald

Journal of Criminal Law and Criminology

Bail and pretrial detention decisions may have important consequences for racial disparities in incarceration rates. Poor minority defendants who are unable to post bail and get released from jail before trial may be more likely to plead guilty and accept longer sentences of incarceration. Racial disparities in incarceration sentences may then reflect a combination of differences in the seriousness of a defendant’s case, criminal history, and economic resources to pay bail. This study examines the extent to which bail decision-making and pretrial detention explain Black-White disparities in criminal adjudications and sentences in the Delaware courts from 2012 to 2014. Over …

Principles Of Pretrial Release: Reforming Bail Without Repeating Its Harms, Brook Hopkins, Chiraag Bains, Colin Doyle

Journal of Criminal Law and Criminology

Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls.

This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. …

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis Of The Role Of Racial Bias In Bond Decisions And Ideas For Reform, Lydette S. Assefa

Journal of Criminal Law and Criminology

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such …

Toward A Just Model Of Pretrial Release: A History Of Bail Reform And A Prescription For What's Next, Alexa Van Brunt, Locke E. Bowman

Journal of Criminal Law and Criminology

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain …

Pre-Imprisonment Employment Drops: Another Instance Of The Ashenfelter Dip?, Charles E. Loeffler

Journal of Criminal Law and Criminology

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.