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Book Review Of Spencer Headworth’S Rules Of The Road: The Automobile And The Transformation Of American Criminal Justice, Mark Fenster

UF Law Faculty Publications

No abstract provided.

Time For Reform, Not Abolition: Balancing Justice And Morality Through Amendment Of The Federal Death Penalty, Madison Steinkamp

St. Thomas Law Review

In 1987, President Ronald Reagan addressed Congress, saying it was "scandalous and intolerable" that federal law did not provide for an enforceable death penalty.' Ten years prior, following a brief moratorium on its application, the death penalty had been ruled constitutional. While thirty-five states had already reinstated the death penalty at the state level and constitutionally executed ninety-three prisoners since 1976, Congress had not yet enacted the rational, objective standards necessary for applying the death penalty constitutionally. In the year following his speech to Congress, President Reagan successfully signed the federal death penalty into law through the Anti-Drug Abuse Act …

A New Criminal Response Framework: Rejecting The "Four Horsemen Of The Carceral State", George Glass

Indiana Law Journal

Many first-year criminal law courses begin with a discussion of the nineteenth-century English case Regina v. Dudley & Stephens. In this case, a ship was caught in a storm, and while stranded at sea, two men decided to kill and eat a younger man in order to survive. The case considers whether these two men should be punished for killing the third man, and if so, how severe should that punishment be. For many law students, this is one of the rare occasions when they are asked whether punishment is justified. Soon, they will instead be asked which of the …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Judging Our New Judges: Why We Must Remove Artificial Intelligence From Our Courtrooms Now, Kieran Duffy Newcomb

Honors Theses and Capstones

In this paper, I explore some of the ways in which artificial intelligence might enhance the sentencing process through recidivism prediction technology. Notably, this technology can increase the accuracy of risk predictions and the speed with which sentencing decisions are reached. I then show, however, that the recidivism prediction technology is likely to turn into what data scientist Cathy O’Neil calls a Weapon of Math Destruction. The potential harmfulness of this technology is due not to the inherent nature of the technology, but the symbiotic relationship it will have with our already harmful criminal justice system. I argue that the …

Exploring The Factors That Influence Female Offending In The U.S. And Mexico, Dana Villasenor

CMC Senior Theses

Hollywood has painted a picture of the criminal woman as a sexy, sneaky, and often psychotic female fatale. This is because men run Hollywood. Much like movies, research on why women offend had historically focused on men as their stellar. However, towards the turn of the century and with the disproportionate rise in female incarceration, literature caught up to the fact that women and men do not experience the same socialization, standards, or reality and, therefore, have different reasons for and ways of offending. This research explores those reasons for women in the U.S. and Mexico and paints the picture …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

Operationalizing Power In Health Law: The Hospital Abolition Hypothesis, Matthew B. Lawrence

Faculty Articles

This symposium Article describes how prison abolitionist arguments also support the hypothesis that a defining goal of health law should be the abolition of hospitals. Like prison abolitionism, the hospital abolition hypothesis can provide a constructive way to shift the focus of legal analysis from substantive dimensions (in health law — cost, quality, access, and equity) to the dimension of power.

Law In Inaction: The Origins And Implications Of Chronic Drug Law Underenforcement In One Southern County, Kay L. Levine, Elizabeth Griffiths, Joshua M. Hinkle, Volkan Topalli

Faculty Articles

Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law.

This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the …

Punishment After The Punishment: How Deportation Of Juvenile Offenders Violates The Eighth Amendment And International Law, Elisabeth Sethi

Lewis & Clark Law Review

This Comment examines how the United States deviates from most of the Western world by allowing deportation of noncitizen juvenile offenders to be essentially mandatory for a wide number of crimes. Deportation is “mandatory” in the sense that it is often an automatic result with very few options for judges to consider relevant mitigating factors, such as how long the noncitizen has lived in the United States, ties to U.S. citizen family members, or behavior since committing the crime. Deportation of juvenile offenders is applied harshly to both authorized and unauthorized noncitizens, many of whom have lived in the United …

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 …

Governor Kate Brown Of Oregon’S Historic Use Of Clemency: Using Clemency Exactly As It Was Intended, Mark Cebert, Aliza B. Kaplan

Lewis & Clark Law Review

In Oregon, executive clemency is among the most expansive, yet historically underused, power a governor possesses. Yet, across her two terms as Oregon’s 38th governor, Governor Kate Brown exercised her power of executive clemency a record 61,777 times, dwarfing the clemency use of her predecessors and her contemporaries in other states. Governor Brown’s proactive approach to clemency presents a model for executive involvement in criminal justice reform and aligns with her beliefs of a redemptive and rehabilitative criminal legal system.

In this Article, we examine Governor Brown’s use of clemency, analyzing what her stated and implied rationales reveal about her …

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.

The Limits Of Individual Prosecutions In Deterring Corporate Fraud, Samuel W. Buell

Faculty Scholarship

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual …

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 …

Forbidden Purposes: A New Path For Limiting Criminalization, Raff Donelson

Journal of Criminal Law and Criminology

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, …

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 …

Extraterritorial State Criminal Law, Post-Dobbs, Darryl K. Brown

Journal of Criminal Law and Criminology

Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states’ criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, however, state laws …

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 …

Excessive Force In Prison, Sharon Dolovich

Journal of Criminal Law and Criminology

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny. Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force. This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily. Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison. What …

Law In Inaction: The Origins And Implications Of Chronic Drug Law Underenforcement In One Southern County, Kay L. Levine, Elizabeth Griffiths, Joshua M. Hinkle, Volkan Topalli

Journal of Criminal Law and Criminology

Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law.

This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the …

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 …

Categorical Declinations & Democracy, Brenner M. Fissell

Journal of Criminal Law and Criminology

The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights …

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 …

County Prosecution And State Preemption: The Confusing Politics Of Criminal Legal Reform And Backlash, John Pfaff

Journal of Criminal Law and Criminology

Urban reform prosecutors, who are generally elected at the county level, find themselves in a tricky political spot. On the one hand. most urban counties are in many ways “too big” for reformers: they include large numbers of suburban voters who generally dislike reform, in no small part because they are relatively unaffected by the decisions prosecutors make. On the other hand, these counties are also often “too small”: they lack the political power to resist efforts by conservative state legislatures and governors to rein in, if not outright remove, reformers. This Article examines both vulnerabilities. It first maps out …

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 …