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The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton Nov 2018

The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton

Faculty Scholarship at Penn Law

No abstract provided.


“Second Looks, Second Chances”: Collaborating With Lifers On A Video About Commutation Of Lwop Sentences, Regina Austin Oct 2018

“Second Looks, Second Chances”: Collaborating With Lifers On A Video About Commutation Of Lwop Sentences, Regina Austin

Faculty Scholarship at Penn Law

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions ...


Biological Research On Behavior As Extra-Legal And Discretionary Factors In Sentencing And Punishment, Colleen Margaret Berryessa Jan 2018

Biological Research On Behavior As Extra-Legal And Discretionary Factors In Sentencing And Punishment, Colleen Margaret Berryessa

Publicly Accessible Penn Dissertations

In recent years, there has been an increase in empirical literature regarding how and why neuroscience and genetics research on behavior may influence criminal punishment. This dissertation aims to add to this growing body of literature specifically on types of evidence and aspects of sentencing and punishment that have not yet been studied. This dissertation consists of three papers that examine how the presentation of biological evidence in court or knowledge of the biological influences to behavior may act as extra-legal and discretionary factors in sentencing. The first paper, utilizing a multi-factorial experiment with the death-qualified jury-eligible public, examines how ...


The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer Jan 2018

The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer

Washington University Journal of Law & Policy

No abstract provided.


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect ...


Mental Disorder And Criminal Justice, Stephen J. Morse Jan 2018

Mental Disorder And Criminal Justice, Stephen J. Morse

Faculty Scholarship at Penn Law

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements ...


Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp Jan 2017

Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp

Journal of Criminal Law and Criminology

This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than ...


Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas Jan 2017

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate ...


Constructing Recidivism Risk, Jessica M. Eaglin Jan 2017

Constructing Recidivism Risk, Jessica M. Eaglin

Articles by Maurer Faculty

Courts increasingly use actuarial meaning statistically derived information about a defendant's likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face ...


Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin Jan 2017

Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.


Punishing Genocide: A Comparative Empirical Analysis Of Sentencing Laws And Practices At The International Criminal Tribunal For Rwanda (Ictr), Rwandan Domestic Courts, And Gacaca Courts, Barbora Hola, Hollie Nyseth Brehm Dec 2016

Punishing Genocide: A Comparative Empirical Analysis Of Sentencing Laws And Practices At The International Criminal Tribunal For Rwanda (Ictr), Rwandan Domestic Courts, And Gacaca Courts, Barbora Hola, Hollie Nyseth Brehm

Genocide Studies and Prevention: An International Journal

This article compares sentencing of those convicted of participation in the 1994 genocide in Rwanda. With over one million people facing trial, Rwanda constitutes the world’s most comprehensive case of criminal accountability after genocide and presents an important case study of punishing genocide. Criminal courts at three different levels— international, domestic, and local—sought justice in the aftermath of the violence. In order to compare punishment at each level, we analyze an unprecedented database of sentences given by the ICTR, the Rwandan domestic courts, and Rwanda’s Gacaca courts. The analysis demonstrates that sentencing varied across the three levels ...


Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse Jun 2016

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

Faculty Scholarship at Penn Law

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific ...


What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...


The Drug Court Paradigm, Jessica M. Eaglin Jan 2016

The Drug Court Paradigm, Jessica M. Eaglin

Articles by Maurer Faculty

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level ...


Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson Jan 2015

Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself—in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the ...


Neuroprediction: New Technology, Old Problems, Stephen J. Morse Jan 2015

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

Faculty Scholarship at Penn Law

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.


Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson Jan 2015

Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Using stories from the utopian non-punishment hippie communes of the late 1960's, the essay challenges today’s anti-punishment movement by demonstrating that the benefits of cooperative action are available only with the adoption of a system for punishing violations of core rules. Rather than being an evil system anathema to right-thinking people, punishment is the lynchpin of the cooperative action that has created human success.

This is Chapter 3 from the general audience book Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law. Chapter 4 of the book is also available on SSRN at http://papers.ssrn.com ...


The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson Oct 2014

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes ...


Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp Oct 2014

Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp

All Dissertations, Theses, and Capstone Projects

Under the common law, burglary is defined as a crime committed against the property of another, and is listed as a property offense for purposes of statistical description by the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). However, burglary is prosecuted and sentenced as a violent crime under habitual offender laws at the federal level, and can be regarded as violent in state law, depending on varied circumstances. Using a mixed methods approach, the current study compared state and federal burglary and habitual offender statutes to an empirical description of the offense. First, a comprehensive content ...


Commentary: Reflections On Remorse, Stephen J. Morse Jan 2014

Commentary: Reflections On Remorse, Stephen J. Morse

Faculty Scholarship at Penn Law

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.


Psychopathy And Sentencing: An Investigative Look Into When The Pcl-R Is Admitted Into Canadian Courtrooms And How A Pcl-R Score Affects Sentencing Outcome, Katie Davey Apr 2013

Psychopathy And Sentencing: An Investigative Look Into When The Pcl-R Is Admitted Into Canadian Courtrooms And How A Pcl-R Score Affects Sentencing Outcome, Katie Davey

Electronic Thesis and Dissertation Repository

Little is known about how and when the Psychopathy Checklist Revised (PCL-R) is being introduced into Canadian Courts or how it affects sentencing outcomes. Using the Lexis-Nexis Quicklaw Academic Database to retrieve judge’s sentencing decisions, all 274 cases with PCL-R information for Canadian courts were included in this study. It was hypothesized correctly that PCL-R information would most often be introduced in Long Term Offender (LTO) and Dangerous Offender (DO) applications as well as sentencing cases for murderers and sex offenders. The 274 cases were then reduced to 37 cases in order to focus on sentencing without Dangerous Offender ...


Foreword: A Global Perspective On Sentencing Reforms, Oren Gazal-Ayal Jan 2013

Foreword: A Global Perspective On Sentencing Reforms, Oren Gazal-Ayal

Oren Gazal-Ayal

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics. The ...


Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study, Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman Jan 2013

Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study, Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman

Oren Gazal-Ayal

Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender’s criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant’s testimony or selfpresentation in a courtroom. When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States ...


Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook Jan 2013

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

Scholarly Works

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for ...


"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson Jun 2012

"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson

Faculty Scholarship at Penn Law

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done ...


The Machinery Of Criminal Justice, Stephanos Bibas Jan 2012

The Machinery Of Criminal Justice, Stephanos Bibas

Faculty Scholarship at Penn Law

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased ...


Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse Jan 2011

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have ...


Do Ugly Criminals Receive Harsher Sentences? An Analysis Of Lookism In The Criminal Justice System, Kelly Beck Jan 2010

Do Ugly Criminals Receive Harsher Sentences? An Analysis Of Lookism In The Criminal Justice System, Kelly Beck

Business and Economics Honors Papers

For many years, researchers have attempted to find a link between beauty and labor market outcomes. Although many important findings have been noted in these studies, the beauty analysis utilized was a subjective measurement. This subjective method, while important, may have external factors creating bias in the rating itself. In this study, the impact of beauty is applied to criminals and their sentences. Using a computer based symmetry measurement tool, an objective beauty measurement will be utilized. This study will seek to uncover whether or not criminals who are less attractive, measured through facial symmetry, receive harsher prison sentences than ...


International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White Jan 2010

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

Faculty Scholarship at Penn Law

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of ...


Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin Jan 2010

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

Faculty Scholarship at Penn Law

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding ...