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Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan Jan 2013

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population of returning prisoners in ...


The Systems Fallacy: From Operations Research To Contemporary Cost-Benefit Analysis: The Perils Of Systems Analysis, Past And Present, Bernard E. Harcourt Jan 2013

The Systems Fallacy: From Operations Research To Contemporary Cost-Benefit Analysis: The Perils Of Systems Analysis, Past And Present, Bernard E. Harcourt

Faculty Scholarship

This article analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The article identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative ...


Miller V. Alabama And The (Past And) Future Of Juvenile Justice Policy, Elizabeth S. Scott Jan 2013

Miller V. Alabama And The (Past And) Future Of Juvenile Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century – an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms that ...


Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men’S Legal Socialization, Tom Tyler, Jeffrey Fagan, Amanda Geller Jan 2013

Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men’S Legal Socialization, Tom Tyler, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

An examination of the influence of street stops on the legal socialization of young men showed an association between the number of police stops and a diminished sense of police legitimacy. This association however is not only a consequence of the number of street or car stops they experience or of the degree of police intrusion that occurs during those stops. Rather, the estimated impact of involuntary contact with the police is mediated by evaluations of the fairness of police actions and judgments about whether the police are acting lawfully. Whether the police are viewed as exercising their authority fairly ...


Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt Jan 2013

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple ...


Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt Jan 2013

Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In his 1979 lectures at the Collège de France, The Birth of Biopolitics, Michel Foucault discussed and analyzed Gary Becker’s economic theory of crime and punishment, originally published in The Journal of Political Economy in 1968 under the title “Crime and Punishment: An Economic Approach.” In this historic, second encounter at the University of Chicago, Gary Becker responds to Foucault’s lectures and possible critical readings of his writings on crime and punishment, in conversation with Professors François Ewald (who was, at the time in 1979, Foucault’s assistant at the Collège and one of Foucault’s closest interlocutors ...


Punitive Preventive Justice: A Critique, Bernard E. Harcourt Jan 2012

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This book chapter critically examines punitive preventive measures, such as preventive detention for dangerous individuals, stop-and-frisks on the street, and order-maintenance policing. After reviewing the traditional concern expressed about punitive preventive practices, the chapter investigates the empirical evidence in support of such measures, concluding that the purported need for these measures is, on balance, factually overstated and generally unproven. But the empirical problems foreground a deeper theoretical difficulty with punitive preventive justice, namely that the modern approach to punitive prevention relies predominantly on economic cost-benefit analytic methods that effectively displace political debate and contestation. Like earlier punitive preventive interventions – such ...


Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis Jan 2012

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime, and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case‐control design to identify the effects of living in one of New ...


Law, Economics, And The Burden(S) Of Proof, Eric L. Talley Jan 2012

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic ...


The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor Jan 2012

The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor

Faculty Scholarship

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations ...


On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt Jan 2012

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth ...


Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz Jan 2012

Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz

Faculty Scholarship

These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions – between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.


Policing, Crime And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald Jan 2012

Policing, Crime And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald

Faculty Scholarship

The relationship between citizens and police occupies a central place both in urban politics and in the political economy of cities. In this respect, for nearly 50 years, New York and Los Angeles have been bellwethers for many of the nation’s larger cities. In each city, as in cities across the world, citizens look to police to protect them from crime, maintain social order, respond to a variety of extra-legal community concerns, and reinforce the moral order of the law by apprehending offenders and helping bring them to justice (Reiss, 1971; Black, 1980; Skogan and Frydl, 2004). Beyond enforcing ...


"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott Jan 2012

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing ...


Minority Practice, Majority’S Burden: The Death Penalty Today, James S. Liebman, Peter Clarke Jan 2011

Minority Practice, Majority’S Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation’s 3000-plus counties and their populations are considered. This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question ...


Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens, Bernard E. Harcourt Jan 2011

Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens, Bernard E. Harcourt

Faculty Scholarship

In March 1944, doctors at the University of Chicago began infecting volunteer convicts at Stateville Prison with a virulent strand of malaria to test the effectiveness and side-effects of potent anti-malarial drugs. According to Dr. Alf Alving, the principal investigator, malaria "was the number-one medical problem of the war in the Pacific" and "we were losing far more men to malaria than to enemy bullets." This refrain would rehearse one of the most productive ways of speaking about prisoner experimentation. The Stateville prisoners became human once again and regained their citizenship and political voice by sacrificing their bodies to the ...


Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott Jan 2011

Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This article is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. Good faith purchase questions have occupied the courts and commentators of many nations for millennia. We argue that prior treatments have misconceived the economic problem. An owner of goods will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller’s title if the purchaser is faced with the loss of the goods. An owner and a buyer cannot both be faced ...


"A Good Man Always Knows His Limitations": Overconfidence In Criminal Offending, Thomas Loughran, Ray Paternoster, Alex R. Piquero, Jeffrey Fagan Jan 2011

"A Good Man Always Knows His Limitations": Overconfidence In Criminal Offending, Thomas Loughran, Ray Paternoster, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Traditional criminological research in the area of rational choice and crime decisions places a strong emphasis on offenders’ perceptions of risk associated with various crimes. Yet, this literature has thus far generally neglected the role of individual overconfidence in both the formation of subjective risk perceptions and the association between risk and crime. In other types of high risk behaviors which serve as analogs to crime, including stock trading and uncertain business and investment decisions, overconfidence is shown to have a stimulating effect on an individuals’ willingness to engage in these behaviors. Using data from two separate samples, this paper ...


Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt Jan 2011

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt

Faculty Scholarship

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use ...


Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott Jan 2011

Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This article is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. Good faith purchase questions have occupied the courts and commentators of many nations for millennia. We argue that prior treatments have misconceived the economic problem. An owner of goods will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller’s title if the purchaser is faced with the loss of the goods. An owner and a buyer cannot both be faced ...


Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman Jan 2010

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

Bill Stuntz has brilliantly highlighted the supply side of overcriminalization – how the institutional purposes of criminal justice actors will often be served by more criminal law (and perhaps more criminal enforcement) than is appropriate for a well-functioning society. One might profitably supplement his insights by exploring the demand side, and in particular how criminal law offers a unique and unnecessarily bundled set of institutional and procedural characteristics for which there are no non-criminal substitutes. While for actors within the system, the opacity of criminal law cloaks the self-dealing of agencies and agencies (that's the supply side problem), so for ...


The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan Jan 2010

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles ...


Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg Jan 2010

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

This Article argues that a developmental model of juvenile crime regulation grounded in scientific knowledge about adolescence is both more likely to promote social welfare and is fairer to young offenders than a regime that fails to attend to developmental research. We focus on the less familiar social welfare argument for a separate and more lenient juvenile justice system, and demonstrate that the punitive law reforms of the 1990s have failed to minimize the social cost of juvenile crime. The expanded use of adult incarceration likely contributed to the declining juvenile crime rates since the mid-1990s, but the financial costs ...


Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization (A Polemic And Manifesto For The Twenty-First Century), Bernard E. Harcourt Jan 2010

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization (A Polemic And Manifesto For The Twenty-First Century), Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? A series of further critiques – of meta-narratives, of functionalism, of scientific objectivity – softened this second line ...


Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan Jan 2009

Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Recent research on procedural justice and legitimacy suggests that compliance with the law is best secured not by mere threat of force, but by fostering beliefs in the fairness of the legal systems and in the legitimacy of legal actors. To date, however, this research has been based on general population surveys and more banal types of law violating behavior (such as unpaid parking tickets, excessive noise, etc.). Thus, while we know why normal people obey the law, we do not have similar knowledge as it pertains to the population most likely to commit serious violent crimes. This study fills ...


Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West Jan 2009

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

The contributions of order-maintenance policing and broken windows theory to New York City’s remarkable crime decline have been the subject of contentious debate. The dominant policing tactic in New York since the 1990s has been aggressive interdiction of citizens through street encounters in the search for weapons or drugs. Research showed that minority citizens in the 1990s were disproportionately stopped, frisked and searched at rates significantly higher than would be predicted by their race-specific crime rates, and that this excess enforcement was explained by the social structure of predominantly minority neighborhoods than by either their disorder or their crime ...


Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt Jan 2009

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Faculty Scholarship

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It is important ...


Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt Jan 2009

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are ...


Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph Jan 2009

Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls ...


Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson Jan 2009

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in ...