Law Commons^™

Pulling Back The Curtain: A Follow-Up Report From The Aba Criminal Justice Section Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention and promotion of women criminal lawyers. Pulling Back the Curtain follows up on the initial findings of the TF. The findings are published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine. This report describes the results of a subsequent survey of diverse criminal lawyers and judges conducted at the end of 2020. The survey posed questions related to …

The End Of Liberty, Adam J. Kolber

Faculty Scholarship

No abstract provided.

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Faculty Scholarship

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as …

Victims, Right?, Anna Roberts

Faculty Scholarship

No abstract provided.

American Punishment And Pandemic, Danielle C. Jefferis

Faculty Scholarship

Many of the sites of the worst outbreaks of the disease caused by the novel coronavirus (COVID-19) are America’s prisons and jails. As of March 2021, the virus has infected hundreds of thousands of incarcerated people and well over two thousand have died as a result contracting the disease caused by the virus. Prisons and jails have been on perpetual lockdowns since the onset of the pandemic, with family visits suspended and some facilities resorting to solitary confinement to mitigate the virus’s spread, thereby exacerbating the punitiveness and harmfulness of incarceration. With the majority of the 2.3 million people incarcerated …

Transparency's Ai Problem, Hannah Bloch-Wehba

Faculty Scholarship

A consensus seems to be emerging that algorithmic governance is too opaque and ought to be made more accountable and transparent. But algorithmic governance underscores the limited capacity of transparency law—the Freedom of Information Act and its state equivalents—to promote accountability. Drawing on the critical literature on “open government,” this Essay shows that algorithmic governance reflects and amplifies systemic weaknesses in the transparency regime, including privatization, secrecy, private sector cooptation, and reactive disclosure. These deficiencies highlight the urgent need to reorient transparency and accountability law toward meaningful public engagement in ongoing oversight. This shift requires rethinking FOIA’s core commitment to …

Visible Policing: Technology, Transparency, And Democratic Control, Hannah Bloch-Wehba

Faculty Scholarship

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques for two major reasons. First, new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. Second, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions …

Bargaining Without Bias, Cynthia Alkon

Faculty Scholarship

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that …

Making A Declaration: The Rise Of Declaratory Judgment Actions And The Insurer As Regulator In The Fight To End Sex Trafficking In The Hotel Industry, Lori N. Ross

Faculty Scholarship

No abstract provided.

Abolition As The Solution: Redress For Victims Of Excessive Police Force, Alexis Hoag

Faculty Scholarship

No abstract provided.

Police Reform Through A Power Lens, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

Erasing Evidence Of Historic Injustice: The Cannabis Criminal Records Expungement Paradox, Julie E. Steiner

Faculty Scholarship

Cannabis prohibition and its subsequent enforcement have yielded an epic societal tragedy. The decision to criminalize cannabis was a paradigm-shifting moment in legal history because it converted lawful medicinal or intoxicant seeking conduct into criminal activity, inviting government intrusion into matters previously self-controlled.

Scholars increasingly recognize that prohibition was built upon a decades-long, false, media-driven narrative that “marijuana” was one of society’s worst menacing enemies. Using overtly racist propaganda, the narrative successfully captured the audience, fomenting public anxiety and unfairly demonizing cannabis and its users. This misinformation campaign ultimately led to its current status as prohibited under the federal Controlled …

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility …

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Think Again: The Thought Crime Doctrine And The Limits Of Criminal Law, Jordan Wallace-Wolf

Faculty Scholarship

According to the thought crime doctrine, neither beliefs nor intentions may be subject to criminal punishment. The doctrine is widely endorsed, but puzzling in its scope. Beliefs have a free speech credential: they play a straightforward role in the sincere exchange of ideas. Moreover, they are harmless, in the specific sense that they do not aim at action and so not at lawbreaking. But intentions are otherwise. They do not necessarily further the exchange of ideas and they may aim at wrongful, illegal conduct.

So why should the thought crime doctrine categorically protect them in addition to beliefs? Why not …

The Criminalization Of Foreign Relations, Steven Arrigg Koh

Faculty Scholarship

Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms— presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.

Populist Prosecutorial Nullification, Kerrel Murray

Faculty Scholarship

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of …

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …

Corporate Crimmigration, Brandon L. Garrett

Faculty Scholarship

Immigration laws are not just criminally enforced against individuals, but also corporations. For individuals, “crimmigration” is pervasive, as federal immigration prosecutions are a mass phenomenon. More than a third of the federal criminal docket — nearly 40,000 cases each year — consists of prosecutions of persons charged with violations of immigration rules. In contrast, prosecutors rarely charge corporations, which are required to verify citizenship status of employees. This Article sheds light on this unexplored area of corporate criminal law, including by presenting new empirical data. In the early 2000s, corporate immigration enforcement for the first time increased in prominence. During …

Pointing Guns, Joseph Blocher, Samuel W. Buell, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as …

Closing International Law's Innocence Gap, Brandon L. Garrett, Laurence R. Helfer, Jayne C. Huckerby

Faculty Scholarship

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and …

Othering Across Borders, Steven Arrigg Koh

Faculty Scholarship

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman

Faculty Scholarship

As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract “liberty” said to be protected by …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Beyond "Children Are Different": The Revolution In Juvenile Intake And Sentencing, Joshua Gupta-Kagan

Faculty Scholarship

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can …