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Full-Text Articles in Law

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson Oct 2018

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

Faculty Scholarship at Penn Law

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent ...


Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson Jun 2018

Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson

UF Law Faculty Publications

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates ...


The Persistence Of Fatal Police Taserings In 2017, Donald E. Wilkes Jr. Feb 2018

The Persistence Of Fatal Police Taserings In 2017, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings are a persistent phenomenon in the United States. Every year dozens of Americans are fatally tasered by our police.This article looks at the number of deaths cause by police tasering during 2017.


Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner Feb 2018

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Scholarly Articles

None available.


The Idea Of "The Criminal Justice System", Sara Mayeux Jan 2018

The Idea Of "The Criminal Justice System", Sara Mayeux

Vanderbilt Law School Faculty Publications

The phrase "the criminal justice system " is ubiquitous in discussions of criminal law, policy, and punishment in the United States-so ubiquitous that, at least in colloquial use, almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic "system, " became pervasive only in the 1960s. This essay contextualizes the idea of "the criminal justice system" within the longer history of systems theories more generally, drawing on recent scholarship in intellectual history and the history of science. The essay then recounts how that longer history converged, in 1967 ...


Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons Jan 2018

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of ...


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect ...


Environmens Rea, Anthony Moffa Jan 2018

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from ...


Mapping American Criminal Law: Variations Across The 50 States: Chapter One: Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams Jan 2018

Mapping American Criminal Law: Variations Across The 50 States: Chapter One: Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

Faculty Scholarship at Penn Law

This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers a wide ...


Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin Jan 2018

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Articles

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these ...


The Consensus Myth In Criminal Justice Reform, Benjamin Levin Jan 2018

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Articles

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame ...


A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson Jan 2018

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

Faculty Scholarship at Penn Law

This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible ...


What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger Jan 2018

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s ...


The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson Jan 2018

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 ...


Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg Jan 2018

Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg

Faculty Scholarship

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime. But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend. This Article explains that features associated with biological ...


Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler Jan 2018

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these ...


Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan Jan 2018

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to ...


Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol Jan 2018

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication ...


Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson Jan 2018

Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


User-Generated Evidence, Rebecca Hamilton Jan 2018

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users ...


Criminal Employment Law, Benjamin Levin Jan 2018

Criminal Employment Law, Benjamin Levin

Articles

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with ...