Law Commons^™

Punishment, Deterrence And Social Control: The Paradox Of Punishment In Minority Communities, Jeffery Fagan, Tracey L. Meares

Faculty Scholarship

Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins

University of Michigan Journal of Law Reform

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids "-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court- a …

The Meaning Of Life (Or Limb): An Originalist Proposal For Double Jeopardy Reform, Justin W. Curtin

University of Richmond Law Review

No abstract provided.

Racial Fairness In The Criminal Justice System: The Role Of The Prosecutor, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

In this article, Davis analyzes discusses efforts to involve prosecutors in the elimination of racial disparities in the criminal justice system. Part II explains how prosecutors unintentionally contribute to disparities through the arbitrary, unsystematic exercise of discretion. Part III argues that the U.S. Supreme Court has failed to provide an effective legal remedy for victims of race-based selective prosecution. Finally, in Part IV, Davis endorses the use of racial impact studies and task forces and discusses a model reform effort spearheaded by the Vera Institute of Justice.

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

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 …

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …

A Tribute To Professor Charles J. Ogletree, Jr., Roger Fairfax

Articles in Law Reviews & Other Academic Journals

I recall vividly how, as a junior at Harvard College, I landed a coveted position on Professor Ogletree's office hours list. My ostensible purpose for taking an office hours slot away from a deserving law school student was to discuss the college seminar paper I was writing on the District of Columbia statehood movement. Although I did leave that meeting with several fruitful research leads, I was much more satisfied with achieving my true aim-to meet in person this man about whom I had heard so many wonderful things. The professor did not disappoint. As I sat in his office-the …

Jurisdictional Competition In Criminal Justice: How Much Does It Really Happen?, Samuel R. Gross

Articles

It's a familiar image from American fiction: the bad guy ridden out of town on a rail' or beaten up by the sheriff and dumped on the next train out. Where do they go? Banishment is an age-old form of punishment. In America, where an atomized criminal justice system has survived into the twentyfirst century, we can continue to try to dump our criminals on our near neighbors, and-as Doron Teichman points out in his interesting articlethat is not the only way that American states, counties, and cities can try to reduce their own crime rates by exporting crime elsewhere.3 …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

Publications

No abstract provided.

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

UF Law Faculty Publications

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we …

The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman

Michigan Law Review

Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

From Indifference To Engagement: Bystanders And International Criminal Justice, Laurel E. Fletcher

Michigan Journal of International Law

This Article contributes to the scholarship on transitional justice by examining how the legal architecture and operation of international criminal law constricts bystanders as subjects of jurisprudence, considering the effects of this limitation on the ability of international tribunals to promote their social and political goals, and proposing institutional reforms needed to address this limitation.

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Developmental Trajectories Of Legal Socialization Among Serious Adolescent Offenders, Alex R. Piquero, Jeffery Fagan, Edward P. Mulvey, Laurence Steinberg, Candice Odgers

Faculty Scholarship

Legal socialization is the process through which individuals acquire attitudes and beliefs about the law, legal authorities, and legal institutions. This occurs through individuals' interactions, both personal and vicarious, with police, courts, and other legal actors. To date, most of what is known about legal socialization comes from studies of individual differences among adults in their perceived legitimacy of law and legal institutions, and in their cynicism about the law and its underlying norms. This work shows that adults' attitudes about the legitimacy of law are directly tied to individuals' compliance with the law and cooperation with legal authorities. Despite …

Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher

Faculty Scholarship

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness-as well as its effect on the shifting "boundaries of victimhood "-from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims' rights. While the European Convention on Human Rights represents an evolving "middle ground" in the treatment of victims' rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with …

Why Restorative Justice Is Not Compulsory Compassion: Annalise Acorn's Labour Of Love Lost [A Review Of 'Compulsory Compassion: A Critique Of Restorative Justice,' Annalise E. Acorn (Vancouver: University Of British Columbia Press, 2004)], Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Annalise Acorn has produced an immensely engaging book about love, sexuality and law, written with verve and elan; however, it paints a hugely misleading picture of restorative justice that could be seriously damaging to what is arguably the most significant development in criminal justice since the emergence of the nation state. Restorative justice is changing the nature of criminal justice systems the world over. The Canadian criminal justice system is a leader in this regard, though it is far from being alone. Simplistic and dysfunctional systems of punitive criminal justice are being altered and supplemented by restorative programs that are …

A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Steve Coughlan

Articles, Book Chapters, & Popular Press

In this well written and intriguing book, Neil Gerlach asks why the criminal justice system has accepted DNA evidence in much the same way that our Anglo-Saxon predecessors accepted trial by ordeal. Why have we not instead shown the same caution we show polygraph evidence? To be sure, he does not present the issue in those terms, and might shudder at the analogy. Still, the central issue he pursues in the book is the question of how DNA evidence has managed to assume its current aura of infallibility, as evidence which is somehow uniquely objective and "true": how it has …

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

Policing The Police: The Role Of The Courts And The Prosecution, Steven Zeidman

Fordham Urban Law Journal

This Article focuses on how, and whether, the component parts of the courts - judges, court administrators, and prosecutors - promote justice by actively and critically monitoring or overseeing the police. The author focuses on one of the most common forms of police corruption facing the criminal justice system - what has been termed "falsifications" which includes testimonial perjury, documentary perjury and falsification of police records. The author reflects on what judges and prosecutors have done to combat this form of police corruption and offers ways in which the actors within the criminal justice system can be more effective.

Exonerations In The United States 1989 Through 2003, Samuel R. Gross, Kriten Jacoby, Daniel J. Matheson, Nicholas Montgomery, Sujata Patil

Articles

On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson's 1979 rape conviction and dismissed the charges.1 Mr. Dotson-who had spent ten years in and out of prison and on parole for this conviction-was not the first innocent prisoner to be exonerated and released in America. But his case was a breakthrough nonetheless: he was the first who was cleared by DNA identification technology. It was the beginning of a revolution in the American criminal justice system. Until then, exonerations of falsely convicted defendants were seen as aberrational. Since 1989, these once-rare events have become …

Criminal Prosecution And Civil Remedies For Victims Of Sexual Offenses: Amendment Of The Rape Shield Law, Carol E. Jordan, Elizabeth S. Hughes, Mary Jo Gleason

Office for Policy Studies on Violence Against Women Publications

In 2003, the Kentucky Supreme Court adopted the amended KRS 412, effectively making the language of KRE 412 consistent with the analogous Federal Rule of Evidence 412. Now, as in federal court, the provisions of the Rape Shield Law apply in both criminal and civil cases to govern when and how evidence of a victim's alleged sexual behavior or sexual predisposition may be introduced. The article describes the intent of the original Rape Shield Law and the implications of its amended version in both civil and criminal cases.

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law Review

The Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has prompted renewed interest in sentencing by jury in non-capital cases. Yet jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states-Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window …

Prosecutorial Misconduct In Capital Cases In The Commonwealth Of Kentucky: A Research Study 1976-2000, Roberta M. Harding, Bankole Thompson

Law Faculty Scholarly Articles

The prosecutor wields tremendous power within the American criminal justice system. When that power is misused-particularly in capital cases-tremendous injustices are perpetrated. Yet, occurrences of prosecutorial misconduct seem to occur with distressing regularity. An exhaustive study covering appeals from 1973-95 revealed that two-thirds of overturned death penalties in the United States resulted from overzealous police and prosecutors who withheld exculpatory evidence. Our study covered 55 Kentucky cases from 1976-2000 and found evidence of prosecutorial misconduct in nearly one-half of them, often with several instances per case.

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …