Criminal Law Commons^™

Considering Caretakers: An Explicit Argument For Downward Departures During Federal Sentencing Mitigation For Caretakers Of Children, Danielle Sparber Bukacheski

University of Miami Law Review

The sentencing stage of the federal legal system provides defendants with an opportunity to articulate why the sentencing judge is justified in imposing less severe sentences. Yet, under the Federal Sentencing Guidelines, sentencing judges have been restricted in the characteristics and background information that can be utilized when imposing a downward departure from the recommended Guidelines sentence. More specifically, there is great variability regarding the extent to which family-related circumstances can be utilized as justification for a downward departure due to the Sentencing Commission’s ambiguous language. Considering the damaging effects of incarceration on children when a caretaker is physically removed …

Sentence Served And No Place To Go: An Eighth Amendment Analysis Of "Dead Time" Incarceration, Christopher B. Scheren

Northwestern University Law Review

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses …

Powerless Beings: Solitary Confinement Of Humans And Nonhumans In America, Michael B. Mushlin, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Every day, thousands of humans and millions of nonhumans endure solitary confinement. Human prisoners held this way are confined for twenty-two to twenty-four hours a day for weeks, months, or even years on end in cells the size of a parking space. For these humans, the experience is tortuous. Captive animals held in solitary confinement similarly spend much of their lives locked into tiny spaces, isolated, and deprived of the types of interactions and environment essential to their wellbeing. And, like humans, they are driven mad. In human and nonhuman settings, the agony of solitary is chillingly alike and harmful. …

A Second Chance At Success: Using “Second Look” Laws To Modify Sentences Of Juvenile Offenders, Sophia M. Adams

Dickinson Law Review (2017-Present)

“Second look” sentencing laws allow incarcerated individuals to petition to have their sentences reexamined and potentially reduced after they have served a significant period of incarceration. This rehabilitative relief is conditioned upon an offender showing that they have made meaningful positive changes while incarcerated and would not pose a threat to their community if released. Implementing second look laws is particularly appropriate in the context of offenders who have committed crimes as juveniles. The U.S. Supreme Court has recognized that juvenile offenders are less culpable than their adult counterparts and psychological science supports this conclusion. This Comment examines and compares …

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

Articles

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

Insanity And Incompetency: Courts, Communities, And The Intersections Of Mental Illness And Criminal Justice In The Wake Of Kahler And Trueblood, Gwendolyn West

Golden Gate University Law Review

Today, people with mental illnesses in the United States are ten times more likely to be incarcerated than hospitalized. About 20 percent of the United States population experiences some kind of mental illness each year, and about 3 to 5 percent of the population experiences a severe and persistent mental illness. By contrast, more than 60 percent of jail inmates and at least 45 percent of prison inmates in the United States have a diagnosed mental illness. Studies have found that anywhere from 25 percent to 71 percent of people with serious mental illness in a given community have a …

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

Marquette Law Review

None.

Abolition And Environmental Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

During the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, …

Carl Vinson Institute Presentation, Holly Lynde

Georgia Criminal Law Review

No abstract provided.

Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty

Indiana Journal of Law and Social Equality

No abstract provided.

Historicizing The War(S) On Drugs Across National (And Disciplanary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

Sentenced To Prison, Not To Death: Home Confinement During The Pandemic And Moving Beyond Covid-19, Sydney Mcconnell

Arkansas Law Review

A prison sentence should “not include incurring a great and unforeseen risk of severe illness or death.” But for the 2.3 million people housed in our nation’s prisons and jails during the COVID-19 (“COVID”) pandemic, their sentences have included just that. Since the beginning of the pandemic, the Bureau of Prisons has transferred approximately 49,068 inmates to home confinement. The decision to expand home confinement is an important one. It is a step in the right direction to address another broader, and distinctly American, issue: mass incarceration. Lawmakers on both sides of the political aisle have reached the consensus “that …

Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit

Book Chapters

For most Americans, “prison jihad” may sound frightening and conjure images of religious militants, bearded, turbaned, and under the spell of foreign radical networks…. While this may be the immediate impression, there is nothing like that happening in American prisons. However, there has been a different type of jihad taking place, one that is real and identifiable. This is not the sensational jihad of headline media; rather, this jihad is uneventful and quiet by comparison and has persisted since the 1960s with hardly any public notice.

Despite little attention and recognition, Muslims in prison occupy a unique spot in the …

As Long As There Is Money Involved In Justice, There Will Be No Justice: The United States' Criminalization Of Poverty And The Need To Demonitize Our Criminal "Justice" System, Amanda Piccione

Hofstra Law Student Works

This paper will show how the United States will fail to achieve a criminal “justice” system if money is involved. The cyclical impacts of poverty and marginalization on communities of color throughout our nation’s history will continuously perpetuate an unequal and unfair criminal system. Section II begins by delving into the history of poverty in the United States. It then analyzes poverty and its impacts today while specifically discussing the effects on communities of color and the intersections with crime. Section III examines the legal issue, exploring our monetized legal system and discussing how we can change our criminal legal …

Ai Risk Assessment Tools Amid The War On Drugs: Productive Or Counterproductive?, Matin Pedram

Mitchell Hamline Law Journal of Public Policy and Practice

The War on Drugs refers to a situation in which all the processes of production, distribution, and consumption of all illegal drugs are prohibited. This ambitious goal has imposed considerable costs on societies. The war has weaponized harsher punishments such as life imprisonment, execution, and long-term incarceration against drug offenders. Nonviolent offenders, those who possessed illegal drugs, have been easy targets for governments to show that the war is still ongoing. Although some countries became pioneers in changing the laws to end this costly war, Iran and the United States have made their stance on the drug issue clear, and …

Conditions Of Confinement In Nova Scotia Jails Designated For Men: East Coast Prison Justice Society Visiting Committee Annual Report 2021-2022, Sheila Wildeman, Harry Critchley, Hanna Garson, Laura Beach, Margaret-Anne Mchugh

Reports & Public Policy Documents

This is the second Annual Report of the East Coast Prison Justice Society (“ECPJS”) Visiting Committee (“VC”).

The purpose of the ECPJS VC is to bring increased accountability and transparency to the Nova Scotia correctional system in light of human rights standards, domestic and international. While the Elizabeth Fry Society of Mainland Nova Scotia provides human rights monitoring of conditions of incarceration experienced by women and non-binary people in federal prisons and provincial jails in the Atlantic region, and the federal Office of Correctional Investigator provides further oversight of conditions in federal prisons, there is no comparable independent oversight of …

The Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Rethinking Constitutionally Impermissible Punishment, Nadia Banteka, Erika Nyborg-Burch

Notre Dame Law Review Reflection

In this Essay, we discuss how the COVID-19 pandemic has affected our understanding of constitutionally permissible punishment. We argue, first, that the protracted failure to act by those who have had authority to do so during this public health emergency created a high risk that incarcerated people would suffer severe illness—and even death—in violation of due process protections and the Eighth Amendment prohibition against cruel and unusual punishment. Second, we suggest that a changed understanding of public safety in the context of detention and release during public health emergencies has the potential to shift the framework even after the emergency …

Law School News: Should Prison Be Abolished? 10-6-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

An Algorithmic Assessment Of Parole Decisions, Hannah Lacqueur, Ryan W. Copus

Faculty Works

Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration. Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison. We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015. We quantify the social welfare loss of the Board’s suboptimal decisions by …

Freedom Isn’T Free: Why Washington State Needs To Move Beyond A Cash Bail System, Andre Jimenez

Global Honors Theses

Despite the belief that our justice system holds people “innocent until proven guilty,” for those who are unable to pay for their freedom from pretrial detention, they find the opposite to be true. The cash bail system in this country allows people to pay a court-determined fee to be released from jail after arrest while they wait for their trial. But as this paper demonstrates, the cash bail system as it currently stands in Washington State criminalizes poverty and simultaneously exacerbates racial inequities. Under this system, accused individuals who cannot afford bail, as well as their families, face extreme social …

The Pathological Whiteness Of Prosecution, India Thusi

Articles by Maurer Faculty

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness …

Improving The Mental Health Tale In The Criminal Justice System, Meredith Bernal

Helm's School of Government Conference - American Revival: Citizenship & Virtue

No abstract provided.

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

When Jail & Prison Sentences Become Death Sentences: How Willfully Exposing Incarcerated Persons To Covid-19 Amounts To Cruel & Unusual Punishment, Arielle Aboulafia

Human Rights Brief

Eric Warner called his older brother Hank from San Quentin State Prison almost every Sunday. Though the prison only allowed the brothers to speak for fifteen minutes each week, the two spoke about their lives. In June 2021, Eric stopped calling, and Hank became worried. Hank tried to get in touch with the prison. However, his calls were met with a dead-end voicemail each time. He recalls that he “knew, by not hearing anything, that something was not good.” The following month, prison personnel returned Hank’s calls and told him that his brother Eric had been hospitalized. Later that month, …

A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert

Michigan Law Review

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …

Barred By Their Brains: Inmates With Traumatic Brain Injury (Tbi), Claire Mikita

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.