Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Criminal Law (107)
- Law Enforcement and Corrections (33)
- Law and Race (18)
- Courts (16)
- Judges (16)
-
- Social and Behavioral Sciences (15)
- Constitutional Law (14)
- Legal Studies (14)
- Criminology and Criminal Justice (13)
- Law and Psychology (10)
- Law and Society (10)
- Public Law and Legal Theory (10)
- Evidence (8)
- Sociology (8)
- Law and Economics (6)
- Policy Design, Analysis, and Evaluation (6)
- Public Affairs, Public Policy and Public Administration (6)
- Civil Rights and Discrimination (5)
- Criminology (5)
- Jurisprudence (5)
- Legislation (5)
- Social Control, Law, Crime, and Deviance (5)
- Comparative and Foreign Law (4)
- Fourteenth Amendment (4)
- Law and Politics (4)
- Legal History (4)
- Litigation (4)
- Medicine and Health Sciences (4)
- Institution
-
- University of Missouri School of Law (20)
- University of Pennsylvania Carey Law School (18)
- University of Colorado Law School (15)
- University of Michigan Law School (11)
- Washington and Lee University School of Law (8)
-
- Maurer School of Law: Indiana University (5)
- Cornell University Law School (4)
- Penn State Law (4)
- Southern Methodist University (4)
- St. John's University School of Law (4)
- University of Baltimore Law (4)
- Boston University School of Law (3)
- Golden Gate University School of Law (3)
- Loyola University Chicago, School of Law (3)
- Saint Louis University School of Law (3)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (3)
- University of Richmond (3)
- Columbia Law School (2)
- Georgetown University Law Center (2)
- Notre Dame Law School (2)
- SJ Quinney College of Law, University of Utah (2)
- University of Arkansas at Little Rock William H. Bowen School of Law (2)
- University of Cincinnati College of Law (2)
- University of Kentucky (2)
- Washington University in St. Louis (2)
- American University Washington College of Law (1)
- Barry University School of Law (1)
- Fordham Law School (1)
- Mitchell Hamline School of Law (1)
- Montclair State University (1)
- Publication Year
- Publication
-
- All Faculty Scholarship (25)
- Faculty Publications (24)
- Publications (16)
- Articles (11)
- Faculty Scholarship (9)
-
- Journal Articles (6)
- Scholarly Articles (6)
- Articles by Maurer Faculty (5)
- Cornell Law Faculty Publications (4)
- Faculty Journal Articles and Book Chapters (4)
- Faculty Publications & Other Works (3)
- Law Faculty Publications (3)
- Scholarly Works (3)
- Supreme Court Case Files (3)
- California Joint Committees (2)
- Faculty Articles and Other Publications (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Law Faculty Scholarly Articles (2)
- Nevada Supreme Court Summaries (2)
- Scholarship@WashULaw (2)
- Utah Law Faculty Scholarship (2)
- All Faculty Publications (1)
- Articles & Chapters (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Book Chapters (1)
- Criminal Justice Faculty Publications (1)
- Department of Justice Studies Faculty Scholarship and Creative Works (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- Law Faculty Scholarship (1)
- PPPA Paper Prize (1)
Articles 1 - 30 of 147
Full-Text Articles in Criminal Procedure
Perceived Dangerousness Mediates Punitive Attitudes Toward Sex Offenders: Results From A Vignette Experiment, Nathan E. Kruis, Kim S. Ménard, Jaeyong Choi, Nicholas J. Rowland, Tyler Frye, Rachel Kosaka, Alicia Williams
Perceived Dangerousness Mediates Punitive Attitudes Toward Sex Offenders: Results From A Vignette Experiment, Nathan E. Kruis, Kim S. Ménard, Jaeyong Choi, Nicholas J. Rowland, Tyler Frye, Rachel Kosaka, Alicia Williams
Criminal Justice Faculty Publications
The current study used an experimental vignette (n = 1,093) to examine the effects of perpetrator sex and age, and victim sex and age, on simulated juror sentencing recommendations for individuals convicted of sexual offenses (ICSO). Path analyses were used to see if differences in punitive attitudes could be explained by perceptions of dangerousness participants attached to experimentally manipulated variables, as hypothesized by attribution theorists. Results show that participants consistently recommended longer sentences, higher fines, and indicated greater support for post-release sanctions for male offenders, older perpetrators, and for offenders who victimized younger adolescents. Path analysis demonstrated that perceptions of …
Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo
Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo
Articles & Chapters
Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.
In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts …
No Sense Of Decency, Kathryn E. Miller
No Sense Of Decency, Kathryn E. Miller
Articles
For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …
“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin
“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin
Scholarship@WashULaw
After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions …
Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner
Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner
Faculty Journal Articles and Book Chapters
The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.
After reviewing the empirical literature on sentence variation, state and federal …
Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck
Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck
Scholarly Articles
The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …
Examining Legal Financial Obligations In Washington State, Bryan Lewis
Examining Legal Financial Obligations In Washington State, Bryan Lewis
PPPA Paper Prize
After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …
Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson
Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson
Faculty Scholarship
In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …
Drug Supervision, Jacob Schuman
Drug Supervision, Jacob Schuman
Journal Articles
Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.
In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …
Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster
Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster
Faculty Scholarship
Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson
Utah Law Faculty Scholarship
In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …
Revocation And Retribution, Jacob Schuman
Revocation And Retribution, Jacob Schuman
Journal Articles
Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.
This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …
The Problem Of Problem-Solving Courts, Erin Collins
The Problem Of Problem-Solving Courts, Erin Collins
Law Faculty Publications
The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?
This Article seeks to answer that question by scrutinizing …
The Just Prosecutor, Brandon Hasbrouck
The Just Prosecutor, Brandon Hasbrouck
Scholarly Articles
As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.
The necessary reforms of our …
Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill
Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill
Faculty Publications & Other Works
No abstract provided.
Reconstruction Sentencing: Reimagining Drug Sentencing In The Aftermath Of The War On Drugs, Jelani Jefferson Exum
Reconstruction Sentencing: Reimagining Drug Sentencing In The Aftermath Of The War On Drugs, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the failed War on Drugs has to be among the top priorities. The forty years of treating drug law offenders as enemies of society have left us with decimated communities and have perpetuated a biased view of …
Supreme Court Clerks And The Death Penalty, Matthew Tokson
Supreme Court Clerks And The Death Penalty, Matthew Tokson
Utah Law Faculty Scholarship
This Essay is part of GW's Supreme Court Clerks at 100 symposium.
The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.
A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began to …
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
Georgetown Law Faculty Publications and Other Works
As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ and …
Criminal Law In Crisis, Benjamin Levin
Criminal Law In Crisis, Benjamin Levin
Scholarship@WashULaw
In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …
Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown
Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown
Nevada Supreme Court Summaries
The Court overruled precedent which held that a presumption of vindictiveness applies when a judge imposes a longer sentence after a new trial.
The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards
The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards
Faculty Publications & Other Works
This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.
For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …
The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt
The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt
Faculty Publications & Other Works
This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.
For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook
Scholarly Works
In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …
The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton
The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton
All Faculty Scholarship
No abstract provided.
From Warfare To Welfare: Reconceptualizing Drug Sentencing During The Opioid Crisis, Jelani Jefferson Exum
From Warfare To Welfare: Reconceptualizing Drug Sentencing During The Opioid Crisis, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.” The goal of the war rhetoric was clear—to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat. Criminal sentencing would come to be the main weapon used in this pressing combat. In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last …
Judicious Imprisonment, Gregory Jay Hall
Judicious Imprisonment, Gregory Jay Hall
All Faculty Scholarship
Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …
The Limits Of Law In The Evaluation Of Mitigating Evidence, Emad H. Atiq, Erin L. Miller
The Limits Of Law In The Evaluation Of Mitigating Evidence, Emad H. Atiq, Erin L. Miller
Cornell Law Faculty Publications
Capital sentencers are constitutionally required to "consider" any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer's consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized. A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation ("SED"), such as egregious child abuse or poverty. SED has played a central role in the Court's elaboration of …
Punishing Risk, Erin Collins
Punishing Risk, Erin Collins
Law Faculty Publications
Actuarial recidivism risk assessments-statistical predictions of the likelihood of future criminal behavior-drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.
Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial …
Remorse Bias, M. Eve Hanan
Remorse Bias, M. Eve Hanan
Scholarly Works
In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants' expressions of remorse as insincere and, thus, …
Mental Disorder And Criminal Justice, Stephen J. Morse
Mental Disorder And Criminal Justice, Stephen J. Morse
All Faculty Scholarship
This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …