Law Commons^™

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is 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 where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Mommy Dearest?: Postpartum Psychosis, The American Legal System, And The Criminalization Of Mental Illness, Allison Dopazo

University of Miami Race & Social Justice Law Review

Children are often regarded as the most sacred beings in all of society—appealing to our collective sense of human dignity and protecting the most vulnerable. Mothers fiercely protecting their young children from perceived dangers is ostensibly a natural and moral response. This notion of the loving mother is in stark contrast to filicide, or the act of a parent murdering their child. It is a bedrock principle of the American criminal-justice system that a defendant is not responsible for their actions if the defendant was “laboring under such a defect of reason, from a disease of the mind, as not …

Mutual Liberation: The Use And Abuse Of Non–Human Animals By The Carceral State And The Shared Roots Of Oppression, Michael Swistara

University of Miami Race & Social Justice Law Review

The carceral state has used non–human animals as tools to oppress Black, Indigenous, and People of the Global Majority (BIPGM) for centuries. From bloodhounds violently trained by settlers to aid in their genocidal colonial project through the slave dogs that enforced a racial caste system to the modern deployment of police dogs, non–consenting non–human animals have been coopted into the role of agents of oppression. Yet, the same non– human animals are themselves routinely brutalized and oppressed by the carceral state. Police kill several thousands of family’s companion dogs every year in the United States. Law enforcement agencies train animals …

Minimum Sentences, Maximum Suffering: A Proposal To Reform Mandatory Minimum Sentencing, Jordan Ramsey

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This paper offers several proposals to reform mandatory minimum sentencing laws and asks how we can best uphold Freedom and the Rule of Law within sentencing law.

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul Heaton

Indiana Law Journal

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Holding Both: Witness Aid Workers' Experiences Supporting Intimate Partner Violence Survivors In District Attorney Offices, Ovita Williams

Dissertations, Theses, and Capstone Projects

Social workers and advocates practice in district attorney (DA) offices as witness or victim aid workers providing intimate partner violence (IPV) survivors counseling, advocacy, resources and information as they enter the criminal legal system (CLS). Their experiences, in particular how stress and vicarious trauma (VT) manifested for them in this unique setting within the criminal legal system, had not yet been examined. This phenomenological study sought to better understand (1) how social workers and advocates in a prosecutor’s office experience practice with intimate partner violence survivors, (2) their experiences of stress, secondary traumatic stress, vicarious trauma, and supports, and (3) …

Judicial Elections, Public Opinion, And Their Impact On State Criminal Justice Policy, Travis N. Taylor

Theses and Dissertations--Political Science

This dissertation explores whether and how the re-election prospects faced by trial court judges in many American states influence criminal justice policy, specifically, state levels of incarceration, as well as the disparity in rates of incarceration for Whites and Blacks. Do states where trial court judges must worry about facing reelection tend to encourage judicial behavior that results in higher incarceration rates? And are levels of incarceration and racial disparities in the states influenced by the proportion of the state publics who want more punitive policies? These are clearly important questions because they speak directly to several normative and empirical …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

After 31 Years In Prison, Lee Chalk Asks For Forgiveness., Jeffery Harrell, Brenda Leon

Capstones

Lee Chalk has spent more than three decades in state prison, and is now applying for executive clemency to have his sentence ended early. He is guilty of a crime, being involved in an armed robbery turned deadly which killed two people. Our project explores the potential for transformation and rehabilitation inside prison, and the personal and political ramification of mass incarceration and extreme sentencing.

https://medium.com/p/738d1cb28532/edit

A shorter version of the capstone was also published with Gothamist here: https://gothamist.com/news/ny-prison-clemency-parole-cuomo

Gender Disparities In Plea Bargaining, Carlos Berdejo

Indiana Law Journal

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender …

Law And Society: The Criminalization Of Latinx In The United States, Gabriela Groenke

Dissertations, Theses, and Capstone Projects

The United States leads the world in incarceration with just over 2.2 million people in state or federal prisons or local jails in 2014 (Bureau of Justice Statistics 2016). Although the number of incarcerated individuals has declined by about .5 percent since its peak in 2008 (Bureau of Justice Statistics 2016), the fact remains that mass incarceration is an epidemic in the United States. Over the last decade much has been written about the effects of mass incarceration on people of color, with many analysts pointing to the fear of crime as contributing to the formulation of current policies, which …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Indiana Law Journal

In “Opioid Policing,”1 Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times2 and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this Response …

Beyond The Money: Expected (And Unexpected) Consequences Of America's War On Drugs, Cynthia Brown

Lincoln Memorial University Law Review Archive

The purpose of this paper is to provide a high-level survey of our nation’s prohibition policies within the context of the costs of the law enforcement efforts upholding those policies. The discussion will offer a cursory review of the economic expense of the war on drugs with tangential coverage of the constitutional, institutional and intangible expenses that are inseparable from an assessment of the costs of America’s drug control efforts. Part I provides a historical review of illicit drug use in the United States, while Part II supplies the evolution of the country’s efforts to codify its drug control policies. …

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Race And Justice Outcomes: Contextualizing Racial Discrimination And Ferguson, Jason M. Williams

Ralph Bunche Journal of Public Affairs

While scores of literature may hint at the tumultuous relationship between the criminal justice system and Blacks, such literature, however, fail to assess, comprehensively, the intersectional purpose of present criminal justice processes and race. This paper will examine contemporary applications of justice along racial lines. It is argued that current justice outcomes are advantageous to the status quo. It is no secret that the American system of justice has a race problem; however, if the goal is to administer justice then, as this paper argues, the current system needs to be seriously examined and rebuilt. The paper also argues that …

Policing The Boundaries Of Whiteness: The Tragedy Of Being “Out Of Place” From Emmett Till To Trayvon Martin, Angela Onwuachi-Willig

Faculty Scholarship

This Article takes what many view as an extraordinary case about racial hatred from 1955, the Emmett Till murder and trial, and analyzes it against the Trayvon Martin killing and trial outcome in 2012 and 2013. Specifically, this Article exposes one important, but not yet explored similarity between the two cases: their shared role in policing the boundaries of whiteness as a means of preserving the material and the psychological benefits of whiteness. This policing occurred in a variety of forms, including: (1) maintaining white racial separation; (2) facilitating cross-class, white racial solidarity; (3) articulating blackness, and specifically black maleness, …

Race And Criminal Justice In Canada, Charles E. Reasons, Shereen Hassan, Melinda Bige, Christianne Paras, Simranjit Arora

All Faculty Scholarship for the College of the Sciences

The relationship between race and crime has long been a subject of study in the United States; however, such analysis is more recent in Canada. A major factor impeding such study is the fact that racial/ethnic data are not routinely collected and available in Canada, unlike the United States. The collection of such data would arguably undermine the multi-cultural mosaic of Canada as a place of acceptance and tolerance. However, the lack of such data bellies research suggesting that race plays a role in the Canadian criminal justice system. Using available, albeit, limited research studies and their data, the role …

The Pipeline: A Dangerous Education, Toria Messinger

Race and Pedagogy Journal: Teaching and Learning for Justice

From both a societal and institutional level, the school-to-prison pipeline continues to be an issue confronting historically marginalized youth. The harsh realities of discrimination and the lack of funding supporting equal education opportunities are directly connected to the perpetuation of stigmatization and overrepresentation in the criminal justice system. By evaluating the pipeline from both a structural and experiential level, it is possible to identify key target areas for future policy changes and theoretical evaluations. Looking at the current structures underpinned by social and legal systems, countless voices have argued that a shift must occur, and it must be sweeping in …

Transforming The System, India Thusi, Robert L. Carter

Books & Book Chapters by Maurer Faculty

Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.

The U.S. prison population has swelled to unprecedented levels and unequal, unjustified treatment based on race and ethnicity is well documented. People of color, particularly Native American, African American, and Latino people, have felt the impact of discrimination within …

Probable Cause Revisited, William Ortman

Law Faculty Research Publications

No abstract provided.

Are Hispanics Discriminated Against In The Us Criminal Justice System?, Maria A. Eijo De Tezanos Pinto

Graduate Research Posters

Recent publications have contributed to increase the perception among Hispanics of an unfair and unequal treatment of this community by the US Criminal Justice System. One of the major concerns was the claim that Hispanics are incarcerated before conviction nearly twice as often as Whites. Unfair treatment perception by the population reduces legitimacy of police and government, and thus, it is imperative to analyze these uninvestigated allegations. Therefore, the purpose of this study is to address said allegations of discrimination against Hispanics and analyze with updated and reliable statistics whether Hispanics are incarcerated before conviction more often than Whites. There …

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

Faculty Articles and Other Publications

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Crime And Punishment: Benign Neglect Of Racism In The Criminal Justice System, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

This article is a literary review and analysis of Malign Neglect: Race, Crime, and Punishment in America by Michael Tonry (1995). Part I of this review describes Tonry's analysis of the crime policies of the Reagan and Bush administrations. Part II discusses Tonry's indictment of the War on Drugs and criticizes his failure to acknowledge the effects of discriminatory prosecutorial practices and sentencing laws. Part III critiques Tonry's trivialization of the significance of race discrimination in the criminal justice system more generally. Part IV summarizes Tonry's proposals for change and stresses the importance of documenting, examining, and eliminating racial bias …