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The Thin Blue Line From Crime To Punishment, Alice Ristroph

Journal of Criminal Law and Criminology

Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal …

Pre-Imprisonment Employment Drops: Another Instance Of The Ashenfelter Dip?, Charles E. Loeffler

Journal of Criminal Law and Criminology

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

The Case Against Property Rights In Old Intangible Indigenous Cultural Property, Dennis S. Karjala, Robert K. Paterson

Northwestern Journal of Technology and Intellectual Property

This article critically reviews some of the recent literature calling for intellectual property rights in indigenous cultural knowledge. In an earlier piece, we argued generally against the notion of defining a new class of “indigenous cultural property” analogous to copyright and patent rights. Rather, we must analyze demands for more protection for old cultural property by building from the ground up, using judicial interpretation or carefully tailored statutory amendments to determine whether the work in question is one that should be protected by a new right and, if so, deciding both the scope and term of protection. Intellectual property involves …

Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …

Punishing On A Curve, Adi Leibovitch

Northwestern University Law Review

Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.”

Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes sentencing outcomes. …

Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle …

Democratizing Criminal Law As An Abolitionist Project, Dorothy E. Roberts

Northwestern University Law Review

The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.

Racing Abnormality, Normalizing Race: The Origins Of America's Peculiar Carceral State And Its Prospects For Democratic Transformation Today, Jonathan Simon

Northwestern University Law Review

For those struggling with criminal justice reform today, the long history of failed efforts to close the gap between the promise of legal equality and the practice of our police forces and prison systems can seem mysterious and frustrating. Progress has been made in establishing stronger rights for individuals in the investigatory and sanctioning stages of the criminal process; yet, the patterns of over-incarceration and police violence, which are especially concentrated on people of color, have actually gotten worse during the same period. Seen in terms of its deeper history however, the carceral state is no longer puzzling: it has …

Reining In The Big Promise Of Big Data: Transparency, Inequality, And New Regulatory Frontiers, Philipp Hacker, Bilyana Petkova

Northwestern Journal of Technology and Intellectual Property

The growing differentiation of services based on Big Data harbors the potential both for greater societal inequality and for greater equality. Anti-discrimination law and transparency alone, however, cannot do the job of curbing Big Data’s negative externalities while fostering its positive effects.

To rein in Big Data’s potential, we adapt regulatory strategies from behavioral economics, contracts and criminal law theory. Four instruments stand out. First, active choice may be mandated between data collecting-services (paid by data) and data-free services (paid by money). Our suggestion provides concrete estimates for the price range of a data-free option, sheds new light on the …

Forgotten Youth: Homeless Lgbt Youth Of Color And The Runaway And Homeless Youth Act, Michelle Page

Northwestern Journal of Law & Social Policy

Over the years, the rate of youth homelessness in America has steadily risen, prompting the creation and subsequent revision of corrective policies. One such policy is the Runaway and Homeless Youth Act of 1974. The Act is not a cure-all for homelessness but it does provide services and programs specifically designed to aid homeless youth. It has had some success, but not all homeless youth benefit from it equally.

Obviously, the youth population is not a homogenous one. Youth are of varying ages, races, genders, and sexualities. Unfortunately, the Runaway and Homeless Youth Act does not specifically account for these …

International Cooperation And Organizational Identities: The Evolution Of The Asean Investment Regime, Sungjoon Cho, Jürgen Kurtz

Northwestern Journal of International Law & Business

No abstract provided.

From Grace To Grids: Rethinking Due Process Protection For Parole, Kimberly Thomas, Paul Reingold

Journal of Criminal Law and Criminology

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …

A Culture That Is Hard To Defend: Extralegal Factors In Federal Death Penalty Cases, Jon B. Gould, Kenneth S. Leon

Journal of Criminal Law and Criminology

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory. This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence. Using frequentist and Bayesian methods—supplemented with expert interviews—we empirically …

Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos

Journal of Criminal Law and Criminology

Project Safe Neighborhoods (PSN) is a federally funded initiative that brings together federal, state, and local law enforcement to reduce gun violence in urban centers. In Chicago, PSN implemented supply-side gun policing tactics, enhanced federal prosecution of gun crimes, and notification forums warning offenders of PSN’s heightened criminal sanctions. Prior evaluations provide evidence that PSN initiatives have reduced crime in the first few years of their operation. But over a decade after the program was established, we still know little about whether these effects are sustained over an extended period of time. This Article examines PSN Chicago, an anti-violence program …

Organizational Conformity And Punishment: Federal Court Communities And Judge-Initiated Guidelines Departures, Jeffery T. Ulmer Ph.D, Brian D. Johnson Ph.D

Journal of Criminal Law and Criminology

The U.S. Sentencing Guidelines represent a uniform set of formal rules that are implemented across a broad range of diverse social contexts. Drawing from neo-institutional theory and kindred perspectives on criminal courts, we argue that the federal courts represent an organizational field in which local influences play a key role in conformity to institutional rules. We use unique survey data from federal judges, aggregated to the district court level and combined with individual-level federal sentencing data, to examine hierarchical models of judicial departures from the Guidelines. Our analysis includes more proximate measures of court community culture than prior research. We …

Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp

Journal of Criminal Law and Criminology

This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than other cases. …

Welcome And Session I: Overview Of Martin Luther King's Career, Kimberly Seymour, Leonard Rubinowitz, Aldon Morris

Northwestern Journal of Law & Social Policy

No abstract provided.

Session Iv: A Conversation With Judge Horace Ward: Dr. King's Lawyer In Georgia, Destiny Peery, Judge Horace Ward

Northwestern Journal of Law & Social Policy

No abstract provided.

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

Commitment And Entrenchment In Corporate Governance, K.J. Martijn Cremers, Saura Masconale, Simone M. Sepe

Northwestern University Law Review

Over the past twenty years, a growing number of empirical studies have provided evidence that governance arrangements protecting incumbents from removal promote managerial entrenchment, reducing firm value. As a result of these studies, “good” corporate governance is widely understood today as being about stronger shareholder rights.

This Article rebuts this view, presenting new empirical evidence that challenges the results of prior studies and developing a novel theoretical account of what really matters in corporate governance. Employing a unique dataset that spans from 1978 to 2008, we document that protective arrangements that require shareholder approval—such as staggered boards and supermajority requirements …

Compulsory Vaccination Laws Are Constitutional, Erwin Chemerinsky, Michele Goodwin

Northwestern University Law Review

A measles epidemic in California, that then spread to other states, focused national attention on the many children who have been vaccinated against communicable diseases. This Essay focuses on the constitutional issues concerning compulsory vaccination laws and argues that every state should require compulsory vaccination of all children, unless there is a medical reason why the child should not be vaccinated. There should be no exception to the compulsory vaccination requirement on account of the parents’ religion or conscience, or for any reason other than medical necessity. The government’s interest in protecting children and preventing the spread of communicable disease …

Constructing The Independence Of International Investment Arbitrators: Past, Present And Future, Georgios Dimitropoulos

Northwestern Journal of International Law & Business

Disqualification challenges against international investment arbitrators are increasing. This poses a great challenge for the legitimacy of the international investment regime. The aim of the Article is to trace the source of this development and to propose ways for the future structuring of an international investment regime that is both transparent and effective. Legal literature understands arbitrator independence as a standard imposed by legal rules. This does not capture the reality of international investment arbitration, especially in the framework of the ICSID Convention, which seems to set a lower standard of independence for ICSID arbitrators.

This Article presents the latest …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Journal of Criminal Law and Criminology

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

The Exercise Of Power In Prison Organizations And Implications For Legitimacy, John Wooldredge, Benjamin Steiner

Journal of Criminal Law and Criminology

Extrapolating from Bottoms and Tankebe’s framework for a social scientific understanding of “legitimacy,” we argue that differences in how correctional officers exercise “power” over prisoners can potentially impact their rightful claims to legitimate authority. Given the implications of this argument for the “cultivation” of legitimacy (as discussed by Weber), the study described here focused on (a) individual and prison level effects on the degree to which officers generally rely on different power bases when exercising their authority, and (b) whether more or less reliance on different power bases at the facility level impacts prisoners’ general perceptions of officers as legitimate …

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Journal of Criminal Law and Criminology

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty …

Recidivism And Time Served In Prison, Daniel P. Mears, Joshua C. Cochran, William D. Bales, Avinash S. Bhati

Journal of Criminal Law and Criminology

A justification for lengthier stays in prison stems from the belief that spending more time in prison reduces recidivism. Extant studies, however, have provided limited evidence for that belief and, indeed, suggest the effect of time served may be minimal. Few studies have employed rigorous methodological approaches, examined time spans of more than one to two years, or investigated the potential for the relationship between recidivism and time served to be curvilinear. Drawing on prior scholarship, this paper identifies three sets of hypotheses about the functional form of the time served and recidivism relationship. Using generalized propensity score analysis to …

Fulfilling Daubert's Gatekeeping Mandate Through Court-Appointed Experts, Stephanie Domitrovich

Journal of Criminal Law and Criminology

No abstract provided.

Looking Backwards At Old Cases: When Science Moves Forward, Jules Epstein

Journal of Criminal Law and Criminology

Forensic evidence—be it in the form of science-derived analyses such as DNA profiling or drug identification, or in more subjective analyses such as pattern or impression [latent print, handwriting, firearms] examinations—is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in Maryland v. Kulbicki, addresses the inadequacies of the Court’s analysis, and suggests some factors for judges confronted …

Sleuthing Scientific Evidence Information On The Internet, Carol Henderson, Diana Botluk

Journal of Criminal Law and Criminology

No abstract provided.