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Incapacitating Errors: Sentencing And The Science Of Change, M. Eve Hanan

Scholarly Works

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a …

Gun Control: The Gun Violence Epidemic In The U.S., Anna Koduru

Williams Honors College, Honors Research Projects

While holding almost half of all civilian-owned guns around the globe and yet only 4.4 percent of the world’s population, the United States of America is heavily centered around gun rights due to the 2nd amendment in the U.S. Constitution. But gun violence is on the rise as deaths due to gun violence are at its highest rate in nearly 40 years. Americans are divided amongst themselves when it comes to how we must approach this issue. In order to reduce gun violence in the U.S., both Republican and Democrat leaders must come together and make bipartisan moves to implement …

Arrests As Guilt, Anna Roberts

Faculty Publications

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrests in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Faculty Publications

(Excerpt)

In “Opioid Policing,” Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law January 2019, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A Life Sentence: An Evaluation Of Voter Disenfranchisement Through A Constitutional Lens, Miranda Noel Janssen

Departmental Honors Projects

As the number of incarcerated pupils has increased in the United States, so has the number of pupils who cannot vote, due to a felony conviction. This paper is organized, (i) the history of felon voter disenfranchisement, (ii) statistics on state and federal levels, (iii) the collateral consequences of felon voter disenfranchisement, (iv) different perspectives about felon voter disenfranchisement, (v) understanding suspect classification and voting as a fundamental right, (vi) understanding strict scrutiny, (vii) examining past court rulings, (viii) identifying why the United States needs to change its current laws on felon voter disenfranchisement, an (ix) the proposal of a …

Harm, Sex, And Consequences, I. India Thusi

Faculty Scholarship

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that "distributive consequentialism, " which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified ft focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or "desert, which are often infected by the judgers' own implicit biases. Distributive …

Exploring Locus Of Control In Offender Cognition And Recidivism Paradigms, Anistasha Lightning, Danielle Polage

All Master's Theses

Working with four Washington State county jails to administer surveys to currently incarcerated inmates, we investigated locus of control and beliefs in the likelihood of continued legal involvement as possible antecedents to criminal recidivism. The surveys examined whether there was any connection between legal involvement frequency and the externalization of locus of control. We investigated external locus of control with specific respect to involvement with the law, the prospect of future incarceration, and feelings concerning the overall cause of original and/or sustained legal involvement utilizing the Revised Causal Dimension Scale (McAuley, Duncan, & Russell, 1992). We identified statistically significant interactions …

Mentally Ill, Or Mentally Ill And Dangerous?: Rethinking Civil Commitments In Minnesota, Eliot T. Tracz

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The "Uncanny Valley" And The Verisimilitude Of Sexual Offenders--Part I: An "Ethorobotic" Perspective, Michael T. Flannery

Texas A&M Law Review

This Article is the first in a series of three articles in which I explain the cycle of misperception of sexual offenders that has encouraged the unconstitutional application of sexual offender laws, including civil commitment laws, in a false effort to quell public fear, protect children, and reduce sexual victimization. In this first Article of the series, I propose that this cycle of misperception and the resistance to the release of civilly committed sexual offenders may be, in part, the product of a novel phenomenon known as the “uncanny valley” effect.

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner

Scholarship@WashULaw

Three successive presidential administrations have opposed immigrant sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigration enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular history of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridical fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driving this longstanding …

Right At Home: Modeling Sub-Federal Resistance As Criminal Justice Reform, Trevor George Gardner

Scholarship@WashULaw

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition. The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law …

Prosecutors And Voters Are Becoming Smart On Crime, Barbara L. Mcquade

Articles

How to explain the recent trend of electing reform-minded local prosecutors? It may be that voters are seeing through tough talk to embrace smarter strategies to reduce crime.

Penile Polygraphy: The Admissibility Of Penile-Plethysmograph Results At Sentencing In Tennessee, Steven Poland

Vanderbilt Law Review

State judges in Tennessee currently consider the results of penile plethysmograph ("PPG") evaluations when sentencing convicted sex offenders. These highly intrusive physical tests purport to identify whether an offender's arousal is considered "deviant" by measuring the change in penis size after viewing various stimuli. Because the results are usually buried in psychosexual evaluations that are part of general presentence assessments of recidivism risk, PPG evaluations suffer from a lack of standardization and little attention under the rules of evidence. Interestingly, PPG testing is similar to polygraphy in a number of ways, although studies have shown that PPG results are more …

Law Enforcement In The American Security State, Wadie E. Said

Publications

This Article documents the evolution of the modem American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena-the terrorist, the criminal, the illegal immigrant-as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is …

Small Crimes, Big Injustices, Stephanos Bibas

Michigan Law Review

Review of Alexandra Natapoff's Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.

Bias In, Bias Out, Sandra G. Mayson

Scholarly Works

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies …

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.

Long Term Effects Of Involvement In The Criminal Justice System: Mitigating Collateral Consequences & Tackling Voter Disenfranchisement, Symposium Session 1, Wesley Caines, Lucy Cutolo, Kendea Johnson

Cardozo Journal of Equal Rights & Social Justice

The symposium examines the long-term effects of involvement in the criminal justice system, focusing on collateral consequences and voter disenfranchisement. It emphasizes the need for both prosecutors and defense attorneys to address these consequences early in criminal cases, as they significantly impact individuals' lives beyond direct legal penalties. The discussion highlights the importance of holistic approaches to mitigate these effects and advocates for systemic changes to reduce disparities and support successful reintegration into society.

Criminal Law: The Institutional Design Of Punishment, Aaron Rappaport

The Judges' Book

No abstract provided.

Foreign Affairs Prosecutions, Steven Arrigg Koh

Faculty Scholarship

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Harm, Sex, And Consequences, India Thusi

Articles by Maurer Faculty

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism …

Reimagining Prosecution: In Search Of The True Progressive, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal justice system. At least ninety percent of all criminal cases are prosecuted on the state level, and in all but five jurisdictions, the chief prosecutor (also known as the district attorney) is an elected official. Most district attorneys run unopposed and serve for decades. However, in recent years, a number of incumbent district attorneys have been challenged and defeated by individuals who pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system. These so-called “progressive prosecutors” have enjoyed some …

The Strings In The Books Ain't Pulled And Persuaded: How The Use Of Improper Statistics And Unverified Data Corrupts The Judicial Process In Sex Offender Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

An examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and under-developed statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive and untreatable, contributes to the anti-therapeutic effect of shaming and humiliation. This results in isolation, seclusion, lack of dignity; also, it further trivializes the judicial process, and violates the tenants of therapeutic jurisprudence. Despite the “frightening …

Taking Data, Michael C. Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

Decarceration’S Blindspots, John F. Pfaff

Faculty Scholarship

For over a decade, my research has focused on trying to answer one simple question: how did the United States, home to about 5% of the world’s population, come to house nearly 25% of its prisoners?1 We were not always the world’s largest jailer; as recently as the 1970s, our incarceration rate was largely indistinguishable from those in other liberal democracies. Yet starting in the mid-1970s, as Figure 1 shows, that rate started to slowly—but steadily and relentlessly—grow, until by the late 2000s it rivaled and then surpassed even the rates seen in autocratic countries like Cuba and Belarus and …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …