Digital Commons Network^™

Preventing Undeserved Punishment, Marah Stith Mcleod

Notre Dame Law Review

Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments?

Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit …

Outlawing Corporate Prosecution Deals When People Have Died, Peter Reilly

Faculty Scholarship

Two Boeing 737 MAX aircraft crashes, occurring less than five months apart in 2018 and 2019, resulted in 346 deaths—possibly the deadliest corporate crime in U.S. history. The United States Department of Justice (DOJ) used an alternative dispute resolution tool called a deferred prosecution agreement (DPA) to resolve criminal charges against Boeing and to immunize the company’s senior-level managers from prosecution. In the end, the company admitted to engaging in the criminal behavior, paid a monetary fine, and agreed to cooperate fully with the government—meaning there would be no courtroom trial, no formal adjudication of guilt, and no possibility of …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

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% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders 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, examining state and federal plea-bargaining rules and doctrines, …

Clemency: A Tool For Extreme And Discriminatory Sentences, Benjamin N. Cardozo School Of Law

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

Exploring The Importance Of Criminal Legal Aid: A Canadian Perspective, Trevor C. W. Farrow, Marcus Pratt

Articles & Book Chapters

There is a growing global recognition that, in order to address the current access to justice crisis, more research, together with a better understanding of data, is needed. This article, through an examination of existing legal aid research primarily in the area of criminal law, explores some of what we know and do not know about the relative benefits and costs of providing different kinds of criminal legal aid services. Although not a comprehensive review of all available research, this article identifies data strengths and gaps and the need for further research and reforms.

Misconduct On Public Transit: An Exploratory Analysis Using The Comments Formerly Known As Tweets, Egbe Etu Etu, Asha Weinstein Agrawal, Imokhai Tenebe, Jordan Larot, Dang Minh Nhu Nguyen

Mineta Transportation Institute

This project developed a simple methodology for using Twitter data to explore public perceptions about misconduct on public transit in California. The methodology allows future researchers to analyze tweets to answer questions such as: How frequent are tweets related to assault, abuse, or other misconduct on public transit? What concerns arise most frequently? What are the types of behaviors discussed? We collected and analyzed data from Twitter posts in California about various types of public transit misconduct from January 2020 to March 2023 to identify the nature and frequency of reported misconduct. Our findings reveal that harassment, uncivil behavior, and …

When A Picture Is Worth A Thousand Sentences: A Call To Reword Federal Sentencing Of Non-Production Child Pornography Offenses In The United States, Lucy T. Shephard

Buffalo Law Review

No abstract provided.

Perlmutter Center For Legal Justice At Cardozo Law Asks Ny Governor Kathy Hochul To Sign Wrongful Convictions Act, Josh Dubin

Perlmutter Center Letters

The Law expands legal recourse for those wrongfully convicted including the right to counsel and the ability to challenge flawed scientific evidence.

The Perlmutter Center for Legal Justice at Cardozo Law has asked New York State Governor Kathy Hochul to sign the Challenging Wrongful Convictions Act.

The law (S.7548) was passed by both houses of the New York State legislature. If signed, it will expand legal recourse for those wrongfully convicted in New York including the right to counsel, the ability to challenge flawed or outdated scientific evidence, gives innocent people who pleaded guilty the right to apply for post …

Dna Analysis: The Answer For Unsolved Cases?, Sarah Hetchler

Master of Arts in Criminal Justice Leadership

DNA analysis has become a crucial part of solving cases. It has developed significantly since its creation in the mid-1980s. The longing for answers within unsolved cases is historically lengthy, leaving traces of distrust and injustice. Criminologists offer a potential solution to the mess created by connecting DNA analysis to protect victims and communities. DNA evidence and analysis can assist in solving cases and provide answers for exonerees. Like public genealogy websites, law enforcement agencies must acknowledge new methods to solve issues. Not only could law enforcement agencies solve and arrest suspects through DNA analysis, but DNA could also provide …

Keeping Fair Chance Laws Fair: Implications For Employers And Employees Given The Expansion And Variety Of Fair Chance Laws In The United States, Caitlin T. Gaines

Catholic University Law Review

Jurisdictions around the United States have adopted, and are considering adopting, fair chance laws, also known as “ban the box” laws, to improve access to employment opportunities for those with criminal histories. For years, individuals with criminal records – approximately one in four U.S. adults – have been disadvantaged when employers heavily rely upon criminal background checks during the hiring process. Now, with the proliferation of fair chance laws which require employers to avoid considering criminal history in hiring decisions, public and private employers are faced with implementation concerns as they adapt their hiring practices to ensure compliance with the …

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

Children Are Different: Jones V. Mississippi, Juvenile Life Without Parole, And Why Youthfulness Matters In Sentencing, Giulia Hintz Mcquirter

MC Law Review

“We are a country of mercy, and we are a country of vengeance, and we live with both at the same time.” This is how Robert Dunham, death penalty expert and Executive Director of the Death Penalty Information Center, describes the United States sentencing system. Battling inside each of us is the desire for people to pay for their wrongdoings, warring against the empathy of our human nature that wants to see the good in people, even criminals.

This internal conflict is rarely on better display than in cases involving child criminals. It is impossible to forget that these children …

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …

The Ever-Shifting Ground Of Pretrial Detention Reform, Jenny E. Carroll

Faculty Scholarship

In the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.

Indicium Ex Machina: Unstructured Sentencing And Disparate Outcomes In Canada, Damilola Awotula

LLM Theses

Recent advancements in artificial intelligence have caused a wave of technological normality. As expected, the criminal justice system, and more increasingly, criminal sentencing is seeing a trend of “technosolutionism” due to real concerns about unjustified disparity. Truly, artificial intelligence has the prospect of making the sentencing process more effective, value-driven, consistent, and predictable. However, relying on the assumption that using such a system may require being confined to the normative sentencing traditions of each country, this thesis argues that there are crucial questions to be addressed about how this technological normality fits within the normative pillars of extant legal principles, …

A Fiduciary Theory Of Progressive Prosecution, Bruce Green, Rebecca Roiphe

Articles & Chapters

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is …

Preface: New Directions In Prosecutorial Reform, Miriam Aroni Krinsky, Justin Murray, Maybell Romero

Articles & Chapters

This Preface, which introduces the American Criminal Law Review’s Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrong- ful convictions began to permeate the public consciousness, many communities focused their attention on the critical role of their local elected prosecutor and elected leaders who promised to do the job differently. Reform-minded prosecu- tors have enjoyed remarkable electoral successes over the past decade such that close to twenty percent of the U.S. population now resides in a jurisdiction …

Juvenile Genetic Privacy In New York: Dna Collection And Maintenance Post-Francis O., Cassidy Moon

Cardozo Journal of Equal Rights & Social Justice

The note argues that the compulsory collection and indefinite maintenance of juvenile forensic DNA profiles violate the Fourth Amendment's protection against unreasonable searches and seizures. It asserts that such practices are particularly problematic for minors due to their heightened privacy interests, the low recidivism rates among juveniles, and the contradiction with the juvenile justice system's focus on rehabilitation and confidentiality. The note advocates for legislative reforms, such as New York Senate Bills 998 and 3104, to address these issues and protect juveniles' privacy rights.

“Social Workers By Day And Terrorists By Night?” Wounded Healers, Restorative Justice, And Ex-Prisoner Reentry, Allely Albert

Articles

Common to many post-conflict societies, former political prisoners and combatants in Northern Ireland are often portrayed as security threats rather than as potential contributors to societal peacebuilding processes. This distrust limits their ability to contribute to the transitional landscape and additionally hinders desistance processes during their reentry from prison. Drawing from the work of Maruna, LeBel, and others on “wounded healers,” this article critically examines the restorative justice work of ex-prisoners who have become involved in leadership roles within community based restorative justice. It is argued that such practitioner work can help former combatants overcome many of the challenges typically …

Barrock Lecture: Democracy In The Criminal Justice System: An Assessment, Carissa Byrne Hessick

Marquette Law Review

None.

Abolition And Environmental Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

During the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, …

Punitive Instead Of Rehabilitative: The Role Of Restitution In The Juvenile Justice System And The Need For Reconstruction, Sydney Ford

Georgia Criminal Law Review

The juvenile justice system was founded on the premise of giving specific attention to the needs of youth and rehabilitating them. Over the years, the juvenile justice system evolved to include more rights and protections for youth while still maintaining that their goal was to rehabilitate justice-involved youth. Restitution, one method of disposition, began as a way to continue this rehabilitation-based mission and provide an alternative to incarceration. However, rehabilitation’s disproportionate and punitive application, with a lack of consistency across state lines, does not coincide with rehabilitation anymore. This article argues that restitution does not align with rehabilitation, the core …

Legalize For Legal Highs: How Georgia Can Address Racial Disparities In The Criminal Legal System By Legalizing Recreational Cannabis, Nneka Ewulonu

Georgia Criminal Law Review

Cannabis prohibition is a policy failure that nevertheless continues to impact more than half of Americans, including Georgians. Remaining true to its roots in racism and xenophobia, cannabis criminalization has disparate impacts, with Black Americans being more likely to be arrested or incarcerated for a cannabis related offense. Furthermore, cannabis criminalization results in tens of millions of missed tax dollars for the state. This article argues for a clear policy solution; it is time for Georgia to legalize cannabis. As demonstrated by the 21 states that have legalized recreational cannabis as of Fall 2022, legalizing recreational cannabis creates both economic …

Progressive Prosecution, Sherry Boston, Rachel Foran, Deborah Gonzalez

Georgia Criminal Law Review

No abstract provided.

Juvenile Sentencing In Georgia, Randee Waldman, Emily Boness, Kaitlyn Barnes, Aakeem Woodard

Georgia Criminal Law Review

No abstract provided.

Examining Remorse In Attributions Of Focal Concerns During Sentencing: A Study Of Probation Officers, Colleen M. Berryessa

International Journal on Responsibility

This research, using interviews with probation officers in the United States (n = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports. The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of …

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

Committee Prosecution: Using Expert Opinion To Make Criminal Justice Descisions More Impactful, Ellison Berryhill

University of Michigan Journal of Law Reform Caveat

Those uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.

Alternatively, casual observers may think that the jury is the most powerful …

Youthful Offenders Sentencing Trends In Pennsylvania, Monika Nwajei

All Theses

The overwhelming majority of existing literature on the effects of age on judicial sentence decision-making focuses on juveniles (ages 18 and below) and older adults. This paper focuses on offenders between the ages of 18-29, who fall legally outside the definition of juvenile, yet do not have the full brain development or clinical maturity of an adult to provide knowledge of sentencing outcomes for different populations and a well-rounded review and critique of judicial sentence decision-making (Johnson, Blum, & Giedd, 2009). Using a series of logistic regression analyses on the Pennsylvania Commission Sentencing (PCS) data from 2001 to 2018, I …