Law Enforcement and Corrections Commons^™

Terry'S Original Sin, Jeffrey Fagan

Faculty Scholarship

In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all "constitutionally unreasonable searches" that were done without a basis of probable cause. In the seven years after Mapp, when homicide rates in the U.S. nearly doubled, riots broke out in at least forty-seven U.S. cities. During the same era, a heroin epidemic gripped the nation's urban centers, giving rise to street drug markets and associated violence and pressures on law enforcement to curb those markets. As violence increased, a turn in the nation's political culture questioned Mapp's restraints on …

Learning To Counter Mass Incarceration, Brett Dignam

Faculty Scholarship

Limited access to education inside American prisons imposes a devastating condition of confinement that cripples both the offender and the community. The prolonged and empty time that characterizes prison today affords little mental stimulation, productive engagement, or preparation for post-release employment. Recent research and analysis has found that education during incarceration correlates with lower rates of recidivism and increases the likelihood and quality of post-release employment. There is a pronounced racially disparate dimension to these effects that are concentrated in communities where investment by the criminal justice system is extraordinarily high. Failure to provide education and the resulting higher rates …

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Recorded encounters between women of color and police officers have been invaluable in bringing the reality of these interactions into the living rooms of otherwise unknowing Americans. The recordings are instrumental pieces of documentation and evidence, with the power to impact verdicts and galvanize the domestic struggle for human rights outside of the courtroom. They also are fraught with ethical issues that must be addressed by attorneys and activists hoping they effect change. Complexities such as implicit biases, editing and sourcing of videos, anonymity for those attacked and bystanders, and vicarious trauma on affected communities complicate use of violent police …

The New Public, Sarah Seo

Faculty Scholarship

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

The Effects Of Local Police Surges On Crime And Arrests In New York City, John Macdonald, Jeffery Fagan, Amanda Geller

Faculty Scholarship

The New York Police Department (NYPD) under Operation Impact deployed extra police officers to high crime areas designated as impact zones. Officers were encouraged to conduct investigative stops in these areas. City officials credited the program as one of the leading causes of New York City’s low crime rate. We tested the effects of Operation Impact on reported crimes and arrests from 2004 to 2012 using a difference-in-differences approach. We used Poisson regression models to compare differences in crime and arrest counts before and after census block groups were designated as impact zones compared to census block groups in the …

Group Threat, Police Officer Diversity And The Deadly Use Of Police Force, Joscha Legewie, Jeffrey Fagan

Faculty Scholarship

Officer-involved killings and racial bias in policing are controversial political issues. Prior research indicates that (perceived) group threat related to political mobilization, economic competition, and the threat of black crime are is an important explanations for variations in police killings across cities in the United States. We argue that a diverse police force that proportionally represents the population it serves mitigates group threat and thereby reduces the number of officer-involved killings. Count models support our argument. They show that group threat is largely driven by the threat of black crime. Black-on-white homicides increase officer-involved killings of African Americans but black-on-black …

Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor

Faculty Scholarship

The Housing Part of the Civil Court was established by statute in Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were …

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of Justice,” interprets …

Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffery Fagan, Amanda Geller

Faculty Scholarship

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment …

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply …

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and subsequent …

Aggressive Policing And The Mental Health Of Young Urban Men, Amanda Geller, Jeffrey Fagan, Tom Tyler, Bruce Link

Faculty Scholarship

Objectives: We provide the first population-based analysis of the health implications of contemporary policing. Many cities have adopted “proactive” policing models, which engage citizens – often aggressively – at low levels of suspicion. We survey young men on their experiences of police encounters and subsequent mental health. Methods: We conducted a population-based phone survey of 1,261 young men in New York City. Respondents reported how many times they were approached by New York Police Department (NYPD) officers, what these encounters entailed, any trauma they attributed to the stops, and their overall anxiety. Data were analyzed using cross-sectional regression. Results: Respondents …

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 they see or experience and a diminished sense of police legitimacy. This association was not primarily a consequence of the number of stops or of the degree of police intrusion during those stops. Rather, the impact of involuntary contact with the police was mediated by evaluations of the fairness of police actions and judgments about whether the police were acting lawfully. Whether the police were viewed as exercising their authority fairly and lawfully shaped the impact …

Justice Policy Reform For High-Risk Juveniles: Using Science To Achieve Large-Scale Crime Reduction, Jennifer L. Skeem, Elizabeth S. Scott, Edward Mulvey

Faculty Scholarship

After a distinctly punitive era, a period of remarkable reform in juvenile crime regulation has begun. Practical urgency has fueled interest in both crime reduction and research on the prediction and malleability of criminal behavior. In this rapidly changing context, high-risk youth – the small proportion of the population where crime is concentrated – present a conundrum. Research indicates that these are precisely the individuals to intensively treat to maximize crime reduction, but there are both real and imagined barriers to doing so. Institutional placement or criminal court processing can exclude these youths from interventions that would better protect public …

The Salience Of Social Contextual Factors In Appraisals Of Police Interactions With Citizens: A Randomized Factorial Experiment, Anthony A. Braga, Christopher Winship, Tom Tyler, Jeffrey Fagan, Tracey L. Meares

Faculty Scholarship

Objectives: Prior research indicates that public assessments of the manner in which the police exercise their authority are a key antecedent of judgments about the legitimacy of the police. In this study, the importance of context in influencing people’s assessment of police wrongdoing is examined.

Methods: A randomized factorial experiment was used to test how respondents perceive and evaluate police–citizens interactions along a range of types of situations and encounters. 1,361 subjects were surveyed on factors hypothesized to be salient influences on how citizens perceive and evaluate citizen interactions with police. Subjects viewed videos of actual police – citizen encounters …

The Mirror Image Of Asylums And Prisons, Sacha Raoult, Bernard E. Harcourt

Faculty Scholarship

This article analyzes trends in prison rates and mental hospital rates in France since the earliest available statistics. It shows that, on almost two centuries of data and amidst an agitated political history, every asylum trend in France is "countered" by an inverse prison trend, and vice-versa. Both trends are like a mirror image of each other. We reflect on the possible explanations for this intriguing fact and show that the most obvious ones (a population transfer or a building transfer) are not able to account for most of the relationship. After these explanations have been dismissed, we are left …

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

This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …

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 …

Efficient Enforcement In International Law, Anu Bradford, Omri Ben-Shahar

Faculty Scholarship

Enforcement is a fundamental challenge for international law. Sanctions are costly to impose, difficult to coordinate, and often ineffective at accomplishing their goals. Rewards are likewise costly and domestically unpopular. Thus, efforts to address pressing international problems-such as reversing climate change and coordinating monetary policy-often fall short. This Article offers a novel approach to international enforcement and demonstrates the advantages of such an approach over traditional sanctions or rewards. It develops a mechanism of Reversible Rewards, which combines sticks and carrots in a unique, previously unexplored way. Reversible Rewards require that a sum of money be offered as a reward …

From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw

Faculty Scholarship

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of …

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 York …

Reversible Rewards, Omri Ben-Shahar, Anu Bradford

Faculty Scholarship

This article offers a new mechanism of private enforcement, combining sanctions and rewards into a scheme of “reversible rewards.” The enforcing party sets up a precommitted fund and offers it as reward to another party to refrain from violation. If the violator turns down the reward, the enforcer can use the money in the fund for one purpose only – to pay for punishment of the violator. The article shows that this scheme doubles the effect of funds invested in enforcement and allows the enforcer to stop violations that would otherwise be too costly to deter. It argues that reversible …

National Security Federalism In The Age Of Terror, Matthew C. Waxman

Faculty Scholarship

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …

Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan

Faculty Scholarship

Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The question …

Streaming The International Silver Platter Doctrine: Coordinating Transnational Law Enforcement In The Age Of Global Terrorism And Technology, Caitlin T. Street

National Security Law Program

The dramatic expansion of technology and globalization over the last thirty years has not only facilitated transnational terrorist operations, but also has transformed the countermeasures utilized by law enforcement and amplified the need for counterterrorism coordination between foreign and domestic authorities. Crucially, these changes have altered the fourth amendment calculus, set out by the international silver platter doctrine, for admitting evidence seized in U.S.-foreign cooperative searches abroad. Under the international silver platter doctrine, courts admit the evidence gathered by foreign authorities abroad unless the unreasonable search is deemed a "joint venture" between U.S. and foreign authorities. Notably, the legal framework …

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …

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

Faculty Scholarship

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy's message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, …