Digital Commons Network^™

Restricting The Use Of Rap Lyrics As Evidence In Courts: A Targeted Approach To Tackling Discrimination In Criminal Procedure, Paige M. Walker

Lewis & Clark Law Review

This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete …

Voices Of The Denied, Heather Spencer

Lewis & Clark Law Review

This Note explores the impact of lengthy prison sentences on rehabilitation and the need for second chances. While incarceration serves purposes such as retribution and incapacitation, it fails to promote rehabilitation and deterrence. Oregon should do more in providing opportunities for early release and rehabilitation for individuals serving lengthy sentences. The Note features interviews with incarcerated individuals who share their thoughts and experiences. Overall, this Note sheds light on the importance of second chances and on the need for reform in the criminal justice system to ensure that prisoners are not denied the chance to lead productive and fulfilling lives.

Liberty, Safety, And Misdemeanor Bail, Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael, David Shi, Songman Kang

Faculty Scholarship

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question …

A Critical Assessment Of The First Step Act's Recidivism-Reduction Measures, Raquel Wilson

Law Faculty Scholarly Articles

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

Extending The Prediction Of Fear Of Crime, Doreen Boateng

Theses

This study aims to expand what we know about fear of crime to reveal the different levels of fear among genders. Although there exists extensive research on the subject matter, the current work examines how different each gender perceives crime given the predictors as vulnerability, disorder and social integration. This study therefore addresses these gaps by assessing gender differences in crime fear and how these models separately influence each gender. To do that, crosstabulations and logistic regression analysis was used in analyzing the relationship between gender, perceptions of neighborhood disorder (street graffiti/litter), social integration (family ties), to determine the relationship …

What If Criminal Lawmaking Becomes Trustworthy?, Zachary S. Price

Journal of Criminal Law and Criminology

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants. Recent shifts in the politics of crime complicate this perspective’ s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter- majoritarian judicial decisions. This Article tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics. It suggests that while arguments for narrow construction of criminal statutes will remain …

Abolition Of What?, Christopher Lewis, Adaner Usmani

Journal of Criminal Law and Criminology

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about.

This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less …

Beyond Bars: Exploring Alternative Possibilities To Address Sexual And Gender Based Violence, Rachel Ensign Habliston

Journal of Criminal Law and Criminology

Many people agree that the United States carceral system is flawed. However, it can be difficult to discuss alternative ways to address violence that do not involve incarceration. Aside from the carceral system, there are other pathways to accountability and healing. Exploring these pathways for perpetrators of heinous crimes, such as sexual and gender-based violence (SGBV), is an overwhelming and under-reviewed endeavor. This Comment seeks to broaden perspectives about how society can hold people accountable for committing acts of SGBV by surveying progressive prosecution, restorative justice, and transformative justice as potential alternatives to the current carceral system. Part I provides …

Evidence Of Unfairness: New York's 2020 Discovery Statute Reduced Fairness For Defendants, Victims, And Society, Hannah E. Meyers

Journal of Criminal Law and Criminology

To ensure fairness and safety for all citizens, it is crucial to evaluate the impact of criminal justice reforms. In this article, I argue that some recent statewide criminal justice reforms legislated with the avowed goal of making the criminal justice system fairer have had the opposite result. As a case study of this phenomenon, I focus on New York State’s discovery statute, which went into effect in January 2020. I detail specifically what the law changed and explain the profound impact of those changes on the functioning of local district attorneys’ offices.

I then analyze data showing a substantial …

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Journal of Criminal Law and Criminology

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Second Look Myopia: State Sentencing Reform And The Local Prosecutorial Response, Alexandra Harrington

Journal of Criminal Law and Criminology

This Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA—after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association—to change the way the State sentences survivors of domestic violence. The DVSJA also allows …

Passing The Buck: The Perils Of Oklahoma V. Castro-Huerta, Adam Crepelle, Timothy Purdon, Brendan Johnson

Faculty Publications & Other Works

The Supreme Court's 2022 decision in Oklahoma v. Castro-Huerta upended federal Indian law by allowing states to prosecute crimes involving Indians committed in Indian country. Castro-Huerta created a concurrent jurisdiction over Indian country crimes involving non-Indians. While concurrent jurisdiction increases the number of law enforcement agents with jurisdiction, it also creates opportunities for those law enforcement agents to shirk responsibility. Neither state nor federal law enforcement is accountable to tribes, so Castro-Huerta is likely to create a pass the buck mentality among non-Indian law enforcement. Moreover, there is little to indicate expanding state authority over tribes will benefit Indians. In …

Reprieves Return: Minnesota's Decision To Awaken The Reprieve, Mary Fee, Monica Shaffer

Mitchell Hamline Law Review

No abstract provided.

The Myth Of The Guilty Suspect: Confession, Narrative, And Political Assent, Susan L. Tanner

Mitchell Hamline Law Review

No abstract provided.

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 …

A Critical Assessment Of The First Step Act’S Recidivism-Reduction Measures, Raquel Wilson

Dickinson Law Review (2017-Present)

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

Estate To State: Pay-To-Stay Statutes And The Problematic Seizure Of Inherited Property, Brittany L. Deitch

University of Colorado Law Review

Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or have formerly been incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation. Pay-to-stay laws have survived constitutional challenges thus far, but some state legislatures …

Progressive Facade: How Bail Reforms Expose The Limitations Of The Progressive Prosecutor Movement, Sarah Gottlieb

Washington and Lee Law Review

Progressive prosecutors have been acclaimed as the new hope for change in the criminal legal system. Advocates and scholars touting progressive prosecution believe that progressive prosecutors will use their power and discretion to address systemic racism and end mass incarceration. Just as this hope has arisen, however, so have concerns that meaningful change cannot be enacted within the criminal system by the very actors whose job it is to incarcerate. This Article highlights these concerns by looking at the bail reforms enacted by four different progressive prosecutors and analyzes the initial promises made, the actions taken to reform and eliminate …

Punishing Gender, Erin Collins

Law Faculty Publications

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been renewed interest in reforms that reduce the harms punishment inflicts on women. These "gender-responsive" reforms aim to adapt traditional punishment practices that, proponents claim, were designed "for men." The push to change how we punish based on gender, while perhaps well intentioned, is misguided. As abolition feminist principles reveal, these gender-responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state. This Article catalogs the ways in that the gender-responsive approach currently influences various …

The Promise Of Progressive Prosecution, G Ben Cohen

Akron Law Faculty Publications

This Article focuses on the promise and challenges of progressive prosecution through the lens of the election of Jason R. Williams to Orleans Parish District Attorney’s Office. Orleans Parish was the epicenter of mass incarceration, wrongful convictions, violence, and racism over the last thirty years. The election of Jason Williams as District Attorney in 2021 resulted in policy changes in the Orleans Parish District Attorney’s Office. In the first two years of the administration, incarceration rates dropped by one-third, impacting over one thousand people. Dozens of individuals serving draconian punishments for lowlevel offenses were resentenced. Eighteen individuals were exonerated. But …

A Democratic Restraint On Incarceration, Marah S. Mcleod

Journal Articles

From the Article

This Article proposes a new sentencing model that employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and confining judicial sentencing discretion within that upper bound.

The Slow Drip Of Decarceration: Reversing The Flood Of Mass Incarceration And Its Racist Impact, Olinda Moyd

Scholarly Articles in Law Reviews & Journals

For the last four decades, the flood of African Americans pouring into our jails and prisons can be likened to a watershed where someone turned on a faucet full force and opened the floodgates to all the prison doors. Despite the multitudinous efforts to secure the release of people unwittingly swept up in this flood, most spending decades behind bars, their releases have been mediocre and only a few have slowly dripped towards freedom. Racism seeps into every facet of American life and nowhere is it more prevalent than in our criminal legal system and the crisis of mass incarceration. …

Showing Mercy Through A Presumption Of Retribution, Marah S. Mcleod

Journal Articles

From the Article

This Essay proposes a path toward the systematic consideration of mercy in American sentencing. America does not have to choose between retributive blame on the one hand and nonjudgmental mercy on the other. Inspired by Whitman's description of the European "presumption of mercy," America can implement a presumption of its own-one that opens the door to the nonarbitrary exercise of mercy, while retaining a clear focus on retributive desert. Such a presumption, tailored to American political realities and moral norms, might be called a "presumption of retribution"-and this presumption could be codified in law while explicitly made …

They're Cops, Too, Shanée Brown

Scholarly Works

Caseworkers or child protective workers are government officials tasked with investigating allegedly endangered children and their parents or guardians. They work for state agencies and exercise police power, but this kind of police power intrusively interferes with the life of an individual more than police power wielded by other law enforcement agencies. The Fourth Amendment provides individuals with protections against illegal searches and seizures of bodies and private spaces by the government, and police officers, as well as caseworkers, are required to respect these constitutional protections. Caseworkers, who are state actors, are dedicated to public safety in that they have …

The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality., Scott Kevin Turner

Graduate Theses, Dissertations, and Problem Reports (ETD)

The study sought to explore the impact of the New York State “Bail Reform Act of 2019,” in rurality. It examined some of the legislative goals of the law, the claim that it caused crime, and offender experiences in rurality. Secondary data was used to map the rural crime landscape and primary data was collected from offenders during face to face interviews. The study was framed using deterrence and opportunity approaches and situated within the broader field environments; legislative, courtroom, and community. The research failed to find support for the claim that bail reform caused crime. Instead, it revealed that …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Constitutional Right To A Fair Trial And Social Justice Influence, Kaitlyn Marchant

Pace Law Review

This article evaluates the challenges that have arisen from the growth of social media and its influence on the right to the fair trial process in high-profile cases. Pretrial publicity through media exposure can bias potential jurors, potentially leading to decisions based on outside information rather than courtroom evidence. The article highlights the risks associated with jurors being exposed to external information through various media sources, which can significantly impact their objectivity and ability to make impartial judgments. It scrutinizes the limitations of the existing legal framework in addressing these challenges, including the reliance on jurors’ assurances of impartiality and …

Do Judges Understand Technology? How Attorneys And Advocates View Judicial Responsibility In Cyberstalking And Cyberharassment Cases, Kateryna Kaplun

International Journal on Responsibility

As new technologies emerge and are increasingly used to commit interpersonal cybercrimes like cyberstalking and cyberharassment, the legal system lags in assisting victims in obtaining justice in these types of experiences. This qualitative research study explores how attorney and advocate interviewees from Illinois, New Jersey, and New York view judges’ responsibility to the law in cyberstalking and cyberharassment cases. This study finds three themes: judges’ lack of understanding of technology and its harms, discretion, and law on the books versus law in action as important factors and frameworks that contribute to why judges do not consider the importance of technology …

Criminal Justice Interventions For Individuals With Mental Health Disabilities: A Systematic Literature Review, Fidelis Azeke, Nassrine Noureddine

Pacific Journal of Health

In the criminal law, with few exceptions, for a finding of guilt, the physical act and the state of mind to commit the offense must be present at the time of the commission of the offense. People with mental disabilities often lack the state of mind required to commit the offense for which they are eventually charged for and or convicted. This paper examines the effectiveness of some past and present criminal justice system interventions that addresses the mental health disabilities of criminal offenders pre-adjudicative proceedings. A systematic review of the literature was used to examine past and present criminal …