Digital Commons Network^™

Populist Prosecutorial Nullification, Kerrel Murray

Faculty Scholarship

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of …

Beyond "Children Are Different": The Revolution In Juvenile Intake And Sentencing, Joshua Gupta-Kagan

Faculty Scholarship

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can …

Am I Angry? You Bet I Am! Watching The George Floyd Murder Trial, Cheryl Page

Journal Publications

We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek …

Redefining Sex Offenders: The Fight To Break The Bias Of Female Sex Offenders, Norma Hamilton

Journal of Race, Gender, and Ethnicity

No abstract provided.

2021: How Gender And Race Affect Justice Now - Final Report, Justice Sheryl Gordon Mccloud, Dana Raigrodski, Sierra Rotakhina, Kelley Amburgey-Richardson

Books

In 1989, the Washington Supreme Court’s Task Force on Gender and Justice in the Courts produced a groundbreaking report on the impact of gender on selected areas of the law. It concluded that gender did affect the availability of justice. We – the Washington State Supreme Court Gender and Justice Commission – are a product of that report and its recommendations. Now, in 2021, we have completed our follow-up study.

Our legal and social science research, our data collection, and our independent pilot projects all led us to the same frustrating conclusion about the effect of gender in Washington State …

Traffickers' "F"Ing Behavior During A Pandemic: Why Pandemic Online Behavior Has Heightened The Urgency To Prevent Traffickers From Finding, Friending, And Facilitating The Exploitation Of Youth Via Social Media, Nicola A. Boothe-Perry

Journal Publications

During the trans-Atlantic slave trade, millions of native Africans were tricked into slavery. Today trans-continental deception continues, ensnaring victims from every corner of the world, many of whom are vulnerable children deceived and enslaved through violence and abuse. Ranked as the second most prevalent criminal enterprise, human trafficking is a multi-billion-dollar enterprise in the United States and across the world, with many of the victims recruited, solicited and exploited via social media. The correlation between this social media exploitation and the use of technology during the 2020 pandemic (hereinafter referred to as "Pandemic Online Behavior" or "POB") highlights the need …

Just Another Fast Girl: Exploring Slavery's Continued Impact On The Loss Of Black Girlhood, Mikah K. Thompson

Faculty Works

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. …

United States V. Herman, Tyler Wilkerson

NYLS Law Review

No abstract provided.

The “Critical Stage” Of Plea-Bargaining And Disclosure Of Exculpatory Evidence, Gabriella Castellano

NYLS Law Review

No abstract provided.

Driver's License Suspension For Unpaid Fines And Fees: The Movement For Reform, Joni Hirsch, Priya Sarathy Jones

University of Michigan Journal of Law Reform

Nearly eleven million people in the United States have a suspended driver’s license for unpaid fines and fees. Laws that suspend, revoke, or prevent renewal of driver’s licenses and/or restrict driving privileges (i.e., registration holds and non-renewals) for nonpayment of traffic- and court-related debt criminalize poverty and disproportionately impact those with a lower economic status. These unproductive and harmful debt-based restrictions not only fail to increase collections of fines and fees, but also divert important public resources for law enforcement and courts away from public safety. The primary way in which these restrictions manifest themselves is through driver’s license suspensions, …

Prohibiting The Punishment Of Poverty: The Abolition Of Wealth-Based Criminal Disenfranchisement, Amy Ciardiello

University of Michigan Journal of Law Reform

The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is …

From The Legal Literature: Is Progressive Prosecution Possible?, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Starting With Life: Murder Sentencing And Feminist Prison Abolitionist Praxis, Debra Parkes

All Faculty Publications

Advocates of decarcation often focus their critiques on imprisonment for non-violent offences. In this vein, current advocacy efforts to end mandatory sentences in Canada tend to carve out “serious violent offences” as not part of a reform agenda. In this chapter, Debra Parkes sketches out the contours of an argument for why feminists might not want to cede that ground, why anti-carceral feminism might involve centering our analysis on the most, rather than the least, serious crimes – starting with those who are serving life sentences for murder. Parkes identifies four non-exhaustive reasons for that focus. The first reason relates …

The Toxic Crusaders: Exploring The History Of The Criminal Enforcement Of The Toxic Substances Control Act, Joshua Ozymy, Melissa L. Jarrell

Mitchell Hamline Law Journal of Public Policy and Practice

The criminal prosecution of defendants who violated federal laws governing chemical substances has been ongoing for roughly four decades. Yet we continue to have a poor understanding of how federal prosecutors use the U.S. Toxic Substances Control Act (TSCA) to charge and prosecute environmental criminals. Through content analysis of all the Environmental Protection Agency’s (EPA) criminal prosecution case summaries from 1983 to 2019, we analyze all TSCA-focused prosecutions for two purposes. First, to gain a better historical understanding of how federal prosecutors have used TSCA as a prosecutorial tool. Second, to understand outcomes of those prosecutions. Results show that 38% …

Do The Police Protect And Serve All People In The United States?: A Survey Of The Problems Within Modern Policing And Solutions To Ensure The Police Protect And Serve Us All, Bianca Velez

University of San Francisco Law Review

No abstract provided.

Epilogue: Some Musings On Deterrence, Mark A. Drumbl

Scholarly Articles

Does law matter? Might it make a difference? Affect human behaviour? Assumptively, yes, it is easy to surmise such causation. Indeed, law can guide. Law manages. At times, law can even control and command and direct. But law is such a sprawling category. Not all laws are the same. Some laws are, in an Orwellian sense, more equal than others. Some walk on four legs, which is good, but not every law comes to walk on two legs when it is better. And some laws, well, they may not move anywhere (or anyone) at all.

“I See What Is Right And Approve, But I Do What Is Wrong”: Psychopathy And Punishment In The Context Of Racial Bias In The Age Of Neuroimaging, Alison Lynch, Michael L. Perlin

Articles & Chapters

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy. While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns. In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation. Specifically, we will focus on how the use …

The Robber Wants To Be Punished, Uri Weiss

Touro Law Review

It is a commonly held intuition that increasing punishment leads to less crime. Let us move our glance from the punishment for the crime itself to the punishment for the attempt to commit a crime, or to the punishment for the threat to carry it out. We argue that the greater the punishment for the attempted robbery, i.e., for the threat, "give me your money or else," the greater the number of robberies and threats there will be. The punishment for the threat makes the withdrawal from it more expensive for the criminal, making the relative cost of committing the …

Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall

Touro Law Review

Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …

Yes, “Stealthing” Is Sexual Assault… And We Need To Address It, Mikaela Shapiro

Touro Law Review

Nonconsensual condom removal, more popularly known as “stealthing,” exposes victims to potential physical risks such as pregnancy and disease and, as victims make clear, feelings of violation and shame. Such condom removal changes sex from consensual sex into nonconsensual sex. There are currently no laws criminalizing stealthing in the United States. This Note considers possible criminal and civil remedies victims may seek in a court of law. Conditional consent, initial consent to sexual activity that is contingent upon intercourse with a condom and may be revoked once that condom is removed, is a key factor in stealthing cases. Ultimately, this …

Erasing Evidence Of Historic Injustice: The Cannabis Criminal Records Expungement Paradox, Julie E. Steiner

Faculty Scholarship

Cannabis prohibition and its subsequent enforcement have yielded an epic societal tragedy. The decision to criminalize cannabis was a paradigm-shifting moment in legal history because it converted lawful medicinal or intoxicant seeking conduct into criminal activity, inviting government intrusion into matters previously self-controlled.

Scholars increasingly recognize that prohibition was built upon a decades-long, false, media-driven narrative that “marijuana” was one of society’s worst menacing enemies. Using overtly racist propaganda, the narrative successfully captured the audience, fomenting public anxiety and unfairly demonizing cannabis and its users. This misinformation campaign ultimately led to its current status as prohibited under the federal Controlled …

Decarceration And Default Mental States, Benjamin Levin

Scholarship@WashULaw

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics. Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of …

By Any Means: A Philosophical Frame For Rulemaking Reform In Criminal Law, Trevor George Gardner

Scholarship@WashULaw

Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. Crime-policy reform should be considered the first-order principle of the crime-policy reform movement. Fairness in the crime-policymaking process, while key to the pursuit of democratic ideals, is best understood as a secondary consideration. Put simply, the prioritization of fair process risks stifling the crime-policy reform movement by tethering the policy ends of the movement (namely, minimalism in criminal administration) to a pre-ordained means.

Checks And Balances In The Criminal Law, Daniel Epps

Scholarship@WashULaw

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and “the separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

Asian Americans And Pacific Islanders And The Prison Industrial Complex, Raymond Magsaysay

Michigan Journal of Race and Law

Recent uprisings against racial injustice, sparked by the killings of George Floyd and others, have triggered urgent calls to overhaul the U.S. criminal “justice” system. Yet Asian Americans and Pacific Islanders (AAPIs), the fastest-growing racial group in the country, have largely been left out of these conversations. Identifying and addressing this issue, I intercalate AAPIs into powerful, contemporary critiques of the prison industrial complex, including emergent abolitionist legal scholarship. I argue that the model minority myth, an anti-Black racial project, leads to the exclusion of AAPIs in mainstream and critical studies of crime and carcerality. I begin the intervention by …

Crime And The Mythology Of Police, Shima Baughman

Utah Law Faculty Scholarship

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating …

Access Denied: How 28 U.S.C. Sec. 1915(G) Violates The First Amendment Rights Of Indigent Prisoners, Molly Guptill Manning

Articles & Chapters

No abstract provided.

Jurors' Perceptions Of False Confessions, Madison G. Gallimore

Graduate Theses, Dissertations, and Problem Reports (ETD)

This study examined the effect of mock jurors’ perceptions of a defendant’s false confession vs. no confession (false confession presence), coercive interrogation techniques vs. panic-escape (false confession reason), and expert witness testimony vs. defendant explanation vs. expert witness testimony plus defendant explanation for his false confession (source). The four hypotheses and one research question pertained to main effects and interaction effects of false confession presence, false confession reason, and source (separately) and expert witness conditions combined on five outcome variables. Outcome variables were defendant’s guilt, trustworthiness, suggestibility, susceptibility to external influences, and juror’s likelihood of changing their verdict. Using Amazon …

The Assassin Was Not Insane: The Acquittal Of The Assassin Of A Genocide's Architect As Symbolic Jury Nullification, Christian G. Ohanian

Cardozo International & Comparative Law Review

The acquittal of Soghomon Tehlirian for assassinating Talaat Pasha, a key architect of the Armenian Genocide, represents a significant instance of symbolic jury nullification. This verdict symbolically addressed the moral and legal failure to hold Talaat Pasha accountable, influencing the development of international human rights law and figures like Raphael Lemkin.

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …