Law Commons^™

Specialty Courts: Time For A Thorough Assessment, Emily F. Wood, Monica K. Miller, Tatyana Kaplan

Mississippi College Law Review

Broadly, the purpose of specialty courts is to address the needs of the individuals in the criminal justice system to reduce recidivism. Most specialty courts adopt the philosophy that the criminal justice system can do more than just impose sanctions; it can address underlying social and health problems that contribute to criminal behavior. The purpose of this article is to discuss the general advantages and disadvantages of specialty courts and to highlight the importance of using research evaluations to determine if the benefits of specialty courts outweigh the costs. This will help determine if courts have achieved their goal of …

“It’S The End Of The World As We Know It” –Redrafting Amendment To Federal Rule Of Criminal Procedure 26 To Allow Remote Testimony, Alisson Sandoval

Touro Law Review

During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.

Children Are Different: Jones V. Mississippi, Juvenile Life Without Parole, And Why Youthfulness Matters In Sentencing, Giulia Hintz Mcquirter

Mississippi College Law Review

“We are a country of mercy, and we are a country of vengeance, and we live with both at the same time.” This is how Robert Dunham, death penalty expert and Executive Director of the Death Penalty Information Center, describes the United States sentencing system. Battling inside each of us is the desire for people to pay for their wrongdoings, warring against the empathy of our human nature that wants to see the good in people, even criminals.

This internal conflict is rarely on better display than in cases involving child criminals. It is impossible to forget that these children …

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

Barrock Lecture: Democracy In The Criminal Justice System: An Assessment, Carissa Byrne Hessick

Marquette Law Review

None.

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

Social Trust In Criminal Justice: A Metric, Joshua Kleinfeld, Hadar Dancig-Rosenberg

Notre Dame Law Review

What is the metric by which to measure a well-functioning criminal justice system? If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count? Remarkably, there is at present no widely accepted metric of success or failure in criminal justice. Those there are—like arrest rates, conviction rates, and crime rates—are deeply flawed. And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, …

The War On Drugs, Moral Panics, And The Groundhog Day Effect: Confronting The Stereotypes That Perpetuate The Cycle Of Disparity, Tasha Withrow

The Mid-Southern Journal of Criminal Justice

There has been a specter haunting America for over 400 years. That specter is an insidious and destructive beast that has found its way into every crevice and layer of all American institutions. Racism, racial stereotypes, racial stigma, biases, and White supremacy has infiltrated every power structure since the foundation of America and has created a system of social control that has perpetually oppressed, marginalized, and disenfranchised generations of people of color. One of the most catastrophic by-products generated from America’s historic racist ideology has been that of the over-criminalization of people of color for drug crimes justified by discriminatory …

Neuroscience And Criminal Justice: Time For A "Copernican Revolution"?, John S. Callender

William & Mary Law Review

The main purpose of this Article is to argue for a fundamental change in the conceptual orientation of criminal justice: from one based on concepts such as free will, desert, and moral responsibility, to one based on empirical science. The Article describes research in behavioral genetics, acquired brain injuries, and psychological traumatization in relation to criminality. This research has reached a level of development at which the traditional approach to criminality is no longer tenable and should be discarded. I argue that mental health legislation provides a model that could be adapted and applied to offenders.

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

William & Mary Law Review

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

The “Innocence Penalty”: Is It More Pronounced For Juveniles?, Nilam A. Sanghvi, Elizabeth A. Delosa

Dickinson Law Review (2017-Present)

Despite the presumption of innocence, we know that individuals accused of crimes are punished for maintaining their innocence in ways both tangible and intangible as they make their way through our criminal justice system. For example, even if instructed not to, jurors may infer guilt from a defendant’s failure to testify; defendants who exercise their right to go to trial receive lengthier sentences if convicted than those who plead guilty; and, once convicted, defendants who maintain their innocence are often denied opportunities for parole or clemency. This article explores whether these “innocence penalties” are even greater for children who are …

Racial Bias Still Exists In Criminal Justice System? A Review Of Recent Empirical Research, Yu Du

Touro Law Review

The debate on whether racial bias is still embedded in the criminal justice (CJ) system today has reached its plateau. One recent article in the Washington Post has claimed an overwhelming evidence of racial bias in the CJ system. Whereas some scholars argue that racial disparity is an epitome of real crime rates, others indicate that implicit and/or explicit racial bias against Blacks held by law enforcement agents persists in the system. This review considers both supporting arguments and relevant counterarguments. After evaluating empirical and rigorous research during the past five years, the review maintains that racial bias still exists …

Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall

Touro Law Review

Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …

Affirmative Action And The Criminal Law, Paul Butler

University of Colorado Law Review

No abstract provided.

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Engaging Students In Systemic Change: The Role Of Louisianalaw School Clinics In The State’S Criminal Justice Reformmovement, Robert Lancaster, Maris Mattes

Louisiana Law Review

The article discusses the role of three Louisiana law school clinics in the state's criminal justice reform movement.

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

The Growth And Need For Veterans Treatment Courts, Chad Lennon

Touro Law Review

No abstract provided.

“Some Things Are Too Hot To Touch”: Competency, The Right To Sexual Autonomy, And The Roles Of Lawyers And Expert Witnesses, Michael L. Perlin, Alison J. Lynch, Valerie R. Mcclain

Touro Law Review

No abstract provided.

The Colourful Truth: The Reality Of Indigenous Overrepresentation In Juvenile Detention In Australia And The United States, Rachel Thampapillai

American Indian Law Journal

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.

The Victimization Of The Misconceived: The Mentally Ill In The Criminal Justice System, Margarita Trejo

Themis: Research Journal of Justice Studies and Forensic Science

It is unfortunate to say that the number of people who suffer from a serious mental illness has been drastically increasing in the criminal justice system since the late 1960s. This drastic change has captivated the minds of the public, forced them to develop a fallacious stereotype, and labeled the mentally ill population as wrongdoers. This image, however, is inaccurate. In reality, these people are the victims of a broken system. This paper establishes the victimization that a person with a serious mental illness experiences as they are processed through the criminal justice system. The following elaborates how victimization is …

Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English

Indiana Law Journal

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the solution …

Revisiting The Voluntariness Of Confessions After State V. Sawyer, Michael Theodore Bigos

Maine Law Review

Every individual in our society needs confidence in our criminal justice system to know that one cannot be convicted of a crime unless a fact finder is convinced of every necessary element with the highest assurances of the truth. The process of establishing facts in a criminal trial is highly dependent upon how decision-making power is allocated between the judge and the jury and upon the fairness of that allocation. This Note discusses the areas of confession law and burdens of proof in the context of how federal criminal constitutional doctrines that affect the fact-finding process offer less than clear …

Restorative Justice: A Look At Victim Offender Mediation Programs, Katie L. Moran

21st Century Social Justice

This report conceptualizes the effectiveness and benefits of utilizing the restorative justice model of Victim Offender Mediation (VOM) within the criminal and juvenile justice systems to serve the rights of victims, offenders, and society more justly. Victim Offender Mediation is discussed as a possible alternative justice model which reframes the victim-offender relationship to foster and respect the dignity and worth of each participant. This restorative justice model combats victims’ feelings of helplessness by giving them back their voice, while having the potential to specifically offer relief to those secondarily victimized by the legal system in cases of simple rape. Offenders …

The Five Stages Of Lgbtq Discrimination And Its Effects On Mass Incarceration, Michael D. Braunstein

University of Miami Race & Social Justice Law Review

Although the Supreme Court’s recent decision in Obergefell v. Hodges provided some indication of equality for members of the LBGTQ community, the sad truth is that discrimination against those who do not identify as “heterosexual” reaches far deeper than the right to marry. This discrimination is especially present with regards to biased treatment by law enforcement officers and a lack of accommodations or protections within the court and prison systems. In a nation that has seen various groups of people fight for and earn their equality over and over again, it is truly concerning that the LGBTQ community is still …

The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe

Cleveland State Law Review

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging—the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and …