Law Commons^™

Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch

Faculty Scholarship

I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have frequently been …

Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty

Faculty Scholarship

The most obvious and perhaps most serious collateral consequence of incarceration is family separation. Imprisonment undermines families and has a detrimental impact upon children, caretakers, and the communities in which they live. Unlike other collateral consequences, family separation has an irreversible impact upon both parents and children. The time apart is lost forever because a childhood can never be recovered.

This Essay will review the available statistical information about incarcerated parents and their children and discuss the detrimental effects of parental incarceration upon families. The Essay will conclude with some reflections about why the adverse consequences of incarceration for prisoners' …

Professional Identity: Comment On Simon, Daniel C. Richman

Faculty Scholarship

Lord Brougham – the icon of zealous advocacy, who saw it as his duty to “save [his royal] client by all means and expedients and at all hazards and costs to other persons and, among them, to himself” – would not last long in a Cuban criminal court today. The question is, how comfortable would he be in a drug treatment court? Could he do his job? How well would he do it? Would he want to? And should we care if he couldn't and wouldn't?

These are all questions raised by William Simon's trenchant exploration of the challenges that …

Reciprocal Effects Of Crime And Incarceration In New York City Neighborhoods, Jeffery Fagan, Valerie West, Jan Holland

Faculty Scholarship

The concentration of incarceration in social groups and areas has emerged in the past decade as a topic of research and policy interest. This interest was fueled by several factors: persistent continued growth of incarceration through the 1990s, even as crime rates fell nationally for over seven years; persistent racial disparities in incarceration; assessments of the collateral consequences of incarceration that potentially aggravate the causal dynamics that lead to elevated crime rates; rapid growth in the number of returning prisoners to their communities; an influx that may strain social control in neighborhoods where social and economic disadvantages have already created …

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …

Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon

Faculty Scholarship

The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.

It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Faculty Scholarship

The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the …

Atkins, Adolescence, And The Maturity Heuristic: Rationales For A Categorical Exemption For Juveniles From Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

In Atkins v. Virginia, the U.S. Supreme Court voted six to three to bar further use of the death penalty for mentally retarded offenders. The Court offered three reasons for banning the execution of the retarded. First, citing a shift in public opinion over the thirteen years since Penry v. Lynaugh, the Court in Atkins ruled that the execution of the mentally retarded is "cruel and unusual punishment" prohibited by the Eighth Amendment. Second, the Court concluded that retaining the death penalty for the mentally retarded would not serve the interest in retribution or deterrence that is essential to capital …

Punishment, Proportionality, And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Aaron Kupchik, Jeffrey A. Fagan, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and …

A Few Reflections On The Model Penal Code Commentaries, Kent Greenawalt

Faculty Scholarship

When Deborah Denno invited me to participate in the panel of the Association of American Law Schools discussing possible revision of the Model Penal Code, I initially declined, not having taught criminal law for more than two decades and having written only sporadically in the field. Professor Denno urged that as one involved in the revision of the Commentary, I might nonetheless have something to contribute. In these reflections, as at the session, I have mainly restricted myself to the relationship between the final commentary and the Code itself.

As Gerard Lynch's essay explains, the Model Penal Code was the …

Rethinking The Death Penalty: Can We Define Who Deserves Death – A Symposium Held At The Association Of The Bar Of The City Of New York May 22, 2002, Martin J. Leahy, Norman L. Greene, Robert Blecker, Jeffrey L. Kirchmeier, William M. Erlbaum, David Von Drehle, Jeffrey A. Fagan

Faculty Scholarship

In light of the defects of the capital punishment system and recent calls for a moratorium on executions, many are calling for serious reform of the system. Even some who would not eliminate the death penalty entirely propose reforms that they contend would result in fewer executions and would limit the death penalty to a category that they call the "worst of the worst." This program asks the question: Is there a category of defendants who are the "worst of the worst?" Can a crime be so heinous that a defendant can be said to "deserve" to be executed? Would …

From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman

Faculty Scholarship

Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of …

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science, is …

Revising The Model Penal Code: Keeping It Real, Gerard E. Lynch

Faculty Scholarship

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation's actual criminal codes, as adopted by the state legislatures and Congress.