Law Commons^™

White Paper Of Democratic Criminal Justice, Joshua Kleinfeld, Laura I. Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R A Duff, Albert W. Dzur, Thomas F. Geraghty, Adriaan Lanni, Marah Stith Mcleod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler, Ekow N. Yankah

Anthony O'Rourke

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Teresa A. Miller

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …

Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr.

Maine Law Review

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and so …

Out Of The Prison And Onto The Streets: The Trafficking Of Incarcerated Women (A Trans-Disciplinary Media Research Project), Mei-Ling Mcnamara

Biennial Conference: The Social Practice of Human Rights

Women are being actively targeted for the sex trafficking trade within US prisons and are recruited by a network of fellow inmates who are given "finders fees" for supplying victims. In prisons from Florida to North Carolina, Ohio to Massachusetts, women are promised housing and food in exchange for work upon release but instead are deceived and prostituted for the human trafficking trade. Some traffickers stalk their victims through public-access profiles from statewide prison websites, then groom them over months through correspondence and phone calls.

Inside the largest women’s prison in the United States, the Florida Lowell Correctional Institution, officers …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

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 effects. …

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

Judicial Politics And Decisionmaking: A New Approach, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Vanderbilt Law Review

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly one quarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

Book Review: James Duane, You Have The Right To Remain Innocent: What Police Officers Tell Their Children About The Fifth Amendment, Cecily J. Mullins

ConLawNOW

In this essay, the student author reviews the book You Have the Right to Remain Innocent by James Duane, which emphasizes the inherent risks of speaking to the police, regardless of whether or not you have something to hide.

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a way …

When An Appeal Goes Wrong: A “Criminal Justice Nightmare”, David R. Dow, Jeffrey R. Newberry

The Journal of Appellate Practice and Process

No abstract provided.

Retributive Justifications For Jail Diversion Of Individuals With Mental Disorder, E. Lea Johnston

E. Lea Johnston

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses. These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services. Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial. This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice. Key tenets of retributive theory are that punishments must not be inhumane and that …

Smoking Guns: The Supreme Court's Willingness To Lower Procedural Barriers To Merits Review In Cases Involving Egregious Racial Bias In The Criminal Justice System, Carrie Leonetti

Marquette Law Review

The systematic foreclosure of federal-court review of even the most meritorious federal constitutional challenges of state criminal convictions has made review on the merits of an inmate’s claim that a state court violated the U.S. Constitution in adjudicating a criminal case exceedingly rare. Nonetheless, over the past two terms, the Supreme Court appears to have started down a different road, overlooking potential procedural hurdles in several cases to uphold on the merits state inmates’ claims that their criminal trials were tainted by explicit race discrimination. While these cases taken together seem to suggest that the Court is willing to address …

Ordering Criminal Restitution: An Exercise In Overstepping Statutory Authority, Christopher W. Maidona

West Virginia Law Review

No abstract provided.

Brief For Justice Richard J. Goldstone As Amicus Curiae In Support Of Petitioner, Sarah Paoletti

All Faculty Scholarship

Amicus curiae herein argue the present petition for a writ of certiorari should be granted as it rightly questions the very legitimacy of the military commission used to try Petitioner based on a theory of equality. International and comparative law further bolster Petitioner’s argument that the Military Commissions Act’s establishment of a segregated criminal justice system in which only non-citizens are subject to military commission jurisdiction violates the equal rights of Petitioner and all non-citizens subject to its jurisdiction.

Equality is a central principle undergirding human rights law that pre-dates the founding of the United Nations and the drafting of …

Why Prosecutors Rule The Criminal Justice System—And What Can Be Done About It, Jed S. Rakoff

Northwestern University Law Review

Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have …

White Paper Of Democratic Criminal Justice, Joshua Kleinfeld, Laura I. Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R A Duff, Albert W. Dzur, Thomas F. Geraghty, Adriaan Lanni, Marah Stith Mcleod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler, Ekow N. Yankah

Northwestern University Law Review

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.

Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …

Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman

Northwestern University Law Review

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …

A Criminal Law We Can Call Our Own?, R A Duff

Northwestern University Law Review

This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity …

Fragmentation And Democracy In The Constitutional Law Of Punishment, Richard A. Bierschbach

Northwestern University Law Review

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, …

Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle …

Criminal Justice That Revives Republican Democracy, John Braithwaite

Northwestern University Law Review

Criminal justice seems an implausible vehicle for reviving democracy. Yet democracy is in trouble. It is embattled by money politics and populist tyrannies of majorities, of which penal populism is just one variant. These pathologies of democracy arise from democracy having become too remote from the people. A new democracy is needed that creates spaces for direct deliberative engagement and for spaces where children learn to become democratic. A major role for restorative justice is one way to revive the democratic spirit through creating such spaces.

Policing And Procedural Justice: Shaping Citizens' Identities To Increase Democratic Participation, Tracey Meares

Northwestern University Law Review

Like the education system, the criminal justice system offers both formal, overt curricula—found in the Bill of Rights, and informal or “hidden” curricula—embodied in how people are treated in interactions with legal authorities in courtrooms and on the streets. The overt policing curriculum identifies police officers as “peace officers” tasked with public safety and concern for individual rights, but the hidden curriculum, fraught with racially targeted stop and frisks and unconstitutional exercises of force, teaches many that they are members of a special, dangerous, and undesirable class. The social psychology of how people understand the fairness of legal authorities—procedural justice—is …

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

Northwestern University Law Review

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous.

But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal …

Criminal Justice Research Methods, Andrea Allen, Scott Jacques

Criminal Justice and Law Grants Collections

This Grants Collection for Criminal Justice Research Methods was created under a Round Four ALG Textbook Transformation Grant.

Affordable Learning Georgia Grants Collections are intended to provide faculty with the frameworks to quickly implement or revise the same materials as a Textbook Transformation Grants team, along with the aims and lessons learned from project teams during the implementation process.

Documents are in .pdf format, with a separate .docx (Word) version available for download. Each collection contains the following materials:

• Linked Syllabus
• Initial Proposal
• Final Report

Introduction To Criminal Justice, Jason Davis, Andrea Allen, Scott Jacques

Criminal Justice and Law Grants Collections

This Grants Collection for Introduction to Criminal Justice was created under a Round Five ALG Textbook Transformation Grant.

Affordable Learning Georgia Grants Collections are intended to provide faculty with the frameworks to quickly implement or revise the same materials as a Textbook Transformation Grants team, along with the aims and lessons learned from project teams during the implementation process.

Documents are in .pdf format, with a separate .docx (Word) version available for download. Each collection contains the following materials:

• Linked Syllabus
• Initial Proposal
• Final Report

Finding Justice, Laurie L. Levenson

ConLawNOW

In this essay memoralizing remarks presented on Constitution Day, Professor Laurie Levenson reflects on her transition from federal prosecutor to defense attorney as founder of Loyola Law School’s Project for the Innocent. She recounts the stories of two clients freed by the work of the Project. She then discusses how this work revealed blind faith in the Constitution is not enough to ensure that only the guilty are convicted. We need to do better. Levenson argues that we need to realize that constitutional rights only protect individuals if both prosecutors and defense lawyers want those rights to work. A prosecutor …

Tattoos And Criminal Behavior: An Examination Of The Relationship Between Body Art And Crime, Daniel D. Dajani

Student Theses

This thesis investigates the relationship between having tattoos and crime. A review of past research concerning tattoos, crime and other forms of deviancy demonstrates that a relationship exists to some extent. This thesis gathers new data concerning tattoos and crime and adds to the knowledge base by examining the alterations in the correlation and what may be causing said alterations. This thesis utilized the survey method and participants were recruited via a mix of in-person and online strategies. We aimed to garner participation from a varied group of respondents that would ensure data relevant to the study would be produced …

Current Criminal Justice System Policy Reform Movements: The Problem Of Unintended Consequences, Robert D. Crutchfield

Indiana Journal of Law and Social Equality

The history of criminal justice reform in the United States has numerous examples of both good and negative consequences. Frequently the latter have been unintended and unexpected. In this article, I point to several potential unintended consequences of the current, bipartisan push for criminal justice reform and how they may be exacerbated by the failure of policy makers to heed the knowledge of both academic criminologists and criminal justice system practitioners. Criminal justice reform can minimize the possibility of unintended negative consequences by using this knowledge and by following time honored principles of justice.

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …