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The Meaning Of Life: A Study Of The Use Of Parole Ineligibility For Murder Sentencing, Isabel Grant, Crystal Choi, Debra Parkes

All Faculty Publications

A number of legal developments in recent years suggest that murder sentencing may be becoming increasingly punitive. This study examines two aspects of setting parole ineligibility. First, using cases from three two-year time periods spanning the past three decades, the authors explore whether judicial calculations of parole ineligibility for second degree murder have changed over time. Second, the authors examine changes enacted in 2011 to allow parole ineligibility to be imposed consecutively for those who commit more than one murder. The study finds a national trend towards reduced reliance on the minimum 10-year period of parole ineligibility, a slight increase …

Criminal Law As Public Ordering, Alice Ristroph

Faculty Scholarship

No abstract provided.

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …

America's Paper Prisons: The Second Chance Gap, Colleen Chien

Michigan Law Review

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …

How To Deter Pedestrian Deaths: A Utilitarian Perspective On Careless Driving, John Clennan

Touro Law Review

No abstract provided.

Can The Pursuit Of Truth Reconcile With The Principle Of Minimizing False Convictions?, Doron Menashe

Cardozo Journal of Conflict Resolution

No abstract provided.

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Felony Disenfranchisement & The Nineteenth Amendment (Symposium), Michael Gentithes

Akron Law Faculty Publications

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women's interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate. Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction …

In The Shadow Of Shular: Conduct Can Unify The Disjointed Categorical Approaches, Sheldon Evans

Scholarship@WashULaw

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing …

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 …

Categorical Nonuniformity, Sheldon Evans

Scholarship@WashULaw

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

Categorical Nonuniformity, Sheldon Evans

Faculty Publications

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Faculty Publications

This Article addresses the role that racial disparities— specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other …

The Case Against Equity In American Contract Law, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation, and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then …

Linked Fate: Justice And The Criminal Legal System During The Covid-19 Pandemic, Susan P. Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick

Faculty Scholarship

The concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.

Nowhere is …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Publications

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

The Troubling Alliance Between Feminism And Policing, Aya Gruber

Publications

No abstract provided.

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …

Understanding Violent-Crime Recidivism, J. J. Prescott, Benjamin David Pyle, Sonja B. Starr

Faculty Scholarship

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

Retribution As Ancient Artifact And Modern Malady, Molly J. Walker Wilson

Lewis & Clark Law Review

One of the oldest and most entrenched goals of punishment is retribution, which is the idea that inflicting pain on someone who has committed a wrong is a worthwhile goal, regardless of any other benefits or harms that may result. Retribution has been the justification for increasingly punitive policies in the United States, the effect of which has decimated communities of color, strapped taxpayers with huge associated costs, and increased crime rates. It is difficult to understand why we perpetuate harmful policies based on “just deserts” until we consider that the foundation of these policies is moral outrage—a powerful, automatic, …

The Invisible Prison: Pathways And Prevention, Margaret F. Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …

The Growth And Need For Veterans Treatment Courts, Chad Lennon

Touro Law Review

No abstract provided.

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

Reform Prosecutors And Separation Of Powers, Logan E. Sawyer Iii

Scholarly Works

For decades, state and local prosecutors won election by promising to be tough on crime. Today, a new breed of prosecutor has gained prominence by campaigning on, and then implementing, reform agendas. Rather than emphasize the crimes they plan to prosecute, these reform prosecutors promise to use their discretion to stop the prosecution of certain crimes and halt the application of certain sanctions. They base their decision not on a lack of resources, but rather on a belief that the enforcement of those laws is unwise or unjust. Critics have decried such policies as both inappropriate and undemocratic. Prosecutors, critics …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …