Digital Commons Network^™

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 …

Role-Reversibility, Ai, And Equitable Justice - Or: Why Mercy Cannot Be Automated, Stephen E. Henderson, Kiel Brennan-Marquez

JCLC Online

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within …

Role-Reversible Judgments And Related Democratic Objections To Ai Judges, Amin Ebrahimi Afrouzi

JCLC Online

In a recent article published by this journal, Kiel Brennan-Marquez and Stephen E. Henderson argue that replacing human judges with AI would violate the role-reversibility ideal of democratic governance. Unlike human judges, they argue, AI judges are not reciprocally vulnerable to the process and effects of their own decisions. I argue that role-reversibility, though a formal ideal of democratic governance, is in the service of substantive ends that may be independently achieved under AI judges. Thus, although role-reversibility is necessary for democratic governance when human judges are on the job, it may not be so when AI judges replace them. …

Enforcing Equity, Daiquiri J. Steele

Northwestern University Law Review

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women …

Black Liberty In Emergency, Norrinda Brown

Northwestern University Law Review

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …

Square-Peg Frauds, Miriam H. Baer

Northwestern University Law Review

The square-peg fraud is a kind of case that until very recently enjoyed the widespread support of prosecutors, jurists, and the general public. Rather than punishing a scheme that rids a victim of her money or property, the square-peg prosecution has long focused on deprivations of intangible property. For years, enforcement actors have employed this concept to pursue innumerable varieties of corruption.

Nowhere has the square peg been more essential than in the government’s prosecution of higher education scandals. From the Varsity Blues parents who wrongfully secured elite college slots for their children, to the business school dean who shaped …

Distributive, Disjunctive, And Discombobulated: Interpreting The Word “And” In 18 U.S.C. § 3553(F)(1), Bailey Cordonnier

NULR Online

No abstract provided.

Debt And Dependence: Foreign Interference In Haiti And The Importance Of Non-State Actor Accountability, Sandra Wisner, Brian Concannon

Northwestern Journal of Human Rights

Colonialist policies and lending practices by foreign states and non-state actors have led to serious and wide-spread violations of Haitian individuals’ fundamental human rights. In particular, a series of loan conditions imposed by international financial institutions and their members states left Haiti vulnerable to increased food insecurity and a severely diminished social sector. This paper proposes that the imposition of such loan conditions constitutes a violation of foreign actors’ obligations under international law respecting economic, social, cultural, and political rights, as well as their extra-territorial obligations (ETOs) to take joint and separate action to promote and respect human rights beyond …

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Northwestern University Law Review

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

The Architecture Of Discretion: Implications Of The Structure Of Sanctions For Racial Disparities, Severity, And Net Widening, Ryan T. Sakoda

Northwestern University Law Review

About four million people are serving a term of probation, parole, or post-release supervision in the United States. Due to the extensive use of incarceration as a punishment for conditions violations, these community supervision programs are a major factor contributing to mass incarceration and, as this Article shows, can play a significant role in exacerbating racial disparities in the criminal legal system.

In recent years, jurisdictions throughout the United States have made reforms to their community supervision programs. A major trend in community supervision reform is the integration of new sanctioning structures, such as “swift and certain” sanctions, for conditions …

Obey Or Abey: An Empirical Examination Of Abeyance Agreements In Public School Discipline, Rachael K. Cox

Northwestern University Law Review

“Exclusionary discipline” is widely understood to mean the typical responses to student misbehavior in public schools: suspension and expulsion. But sometimes their lesser-known counterpart, the abeyance agreement, swoops in before the suspension or expulsion is effectuated and gives the student a “second chance” to avoid such exclusionary discipline—provided the student complies with the terms of the agreement. It sounds simple, but the reality is far more complicated. Without a clearly defined, regulated, and tracked practice, abeyance agreements are an off-record discipline device used at the sole discretion of public school district administrators. Joining a landscape of urgent concerns over the …

Preserving Privilege: Developing A Sound Litigation Strategy For Prison Wiretapping Cases, Daniel J. Cummins

NULR Online

No abstract provided.

The Need For Fairness And Accuracy For Women In Sentencing: Surmounting Challenges To Gender-Specific Statistical Risk Assessment Tools, Elizabeth E. Wainstein

JCLC Online

States across the country have increasingly adopted statistical risk assessment tools in multiple stages of their criminal legal systems with the hope of reducing incarceration without increasing crime. These tools use various characteristics to estimate an individual’s future risk of recidivism, and judges consider the results of these assessments when determining levels of custody or community supervision for convicted individuals. Despite much debate amongst academics and activists on the utility and fairness of these tools, one critique seems beyond debate: the tools are built for men, not women. These tools are based on criteria, statistics, and theory drawn from the …

Not All Evidence Is The Same: Habeas Corpus And Actual Innocence. A Practically Unusable Exception For Fundamental Miscarriages Of Justice?, Samantha C. Olexa

JCLC Online

For many, being convicted of a crime they did not commit would be a living and breathing nightmare. However, for some American prisoners, that nightmare is an unfortunate reality. Although reform focused on how an innocent individual came to be wrongfully convicted—via prosecutorial inaccuracies, forensic and eyewitness errors, jailhouse informants, forced confessions and inadequate representation—and how to prevent it in the future has seen success in recent years, the American legal system continues to fail those currently incarcerated trying to prove their innocence. When seeking habeas relief, the utmost hurdle in proving actual innocence is what type of “new” evidence …

Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh

Journal of Criminal Law and Criminology

This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects.

Scholars such as Malcolm …

Like Putting Lipstick On A Pig: Why The History Of Crime Control Should Compel The Prohibition Of Incentivized Witness Testimony Under Fundamental Fairness Principles, Caleb Linton

Journal of Criminal Law and Criminology

Among Western nations, American courts remain uniquely permissive to the routine law enforcement practice of offering witnesses incentives to testify for the State in criminal trials. Despite laws and ethical rules roundly prohibiting the practice and recurrent skepticism of incentivized testimony in the English common law tradition, American judges have excused the practice based on pragmatism, developing legal fictions to exempt prosecutors from the general prohibition. However, basic common sense, backed by recent empirical scholarship, should alarm participants in the criminal legal system to a severely heightened risk of perjury wherever the prospect of reward compels testimony. Whether law enforcement …

Holding Government Officials Accountable By Applying The State-Created Danger Doctrine To Cases Of Suicide, Zoe Levine

Journal of Criminal Law and Criminology

Section 1983 of the Civil Rights Act provides a means for plaintiffs whose civil rights have been violated by government officials to sue for monetary compensation. However, the doctrine of qualified immunity hampers a plaintiff’s chances of success by blocking cases from going to trial and preventing government entities from paying monetary judgments on “insubstantial cases.” State-created danger doctrine is a judicially created exception that can overcome qualified immunity when a government official has caused or contributed to a danger that resulted in harm to that individual. The purpose of this doctrine is to hold officials accountable who were more …

Public Records Aren't Public: Systemic Barriers To Measuring Court Functioning & Equity, Kat Albrecht, Kaitlyn Filip

Journal of Criminal Law and Criminology

In a new era of computational legal scholarship, computational tools exist with the capacity to quickly and efficiently reveal hidden inequalities in the criminal legal system. Technically, laws exist that legally entitle the public to the requisite court records. However, the opaque bureaucracy of courts prevents us from connecting the public to documents they have a right to access. We exemplify this legal ethical problem by investigating areas of law where codified protections against inequalities exist and where computational tools could help us understand if those protections are being enforced. In general, the computational requirements of such projects needn’t be …

The Problem Of Habitual Offender Laws In States With Felony Disenfranchisement, Daniel Loehr

Journal of Criminal Law and Criminology

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. At the same time, many people with felony convictions cannot vote or run for office due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political process problem. As John Hart Ely argued, laws that target a formally disenfranchised group are tainted and deserve heightened constitutional scrutiny. When reviewing habitual offender laws under the Eighth Amendment, however, courts have applied the opposite of heightened scrutiny—they have applied an extreme form …

Innocence Is Not Enough: Illinois Certificates Of Innocence & The Case Of Wayne Washington, Erin M. Wright

Journal of Criminal Law and Criminology

In 2008, the Illinois State Legislature found that “innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]” To correct this injustice, the General Assembly created a petition for a Certificate of Innocence (“COI”), which provides wrongfully convicted individuals the opportunity to obtain financial relief for time spent incarcerated. Petitioners must show that they “did not by [their] own conduct voluntarily cause or bring about [their] conviction.” Notably, the legislature did not supply a definition for “voluntary,” …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia González

Journal of Criminal Law and Criminology

A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new …

Casting A Ballot For Change: How To Overcome Jail Policy Deficiencies And The O’Brien Precedent To Expand Voting Rights For Jailed Individuals, Lorellee Kampschnieder

Journal of Criminal Law and Criminology

Prior to the 2020 election, lawmakers in several states sought to expand voting rights for individuals with felony convictions, and while this work is important, a large swath of voters who legally never lost the right to vote are still unable to do so because they are detained in jail. These individuals, often detained prior to trial, have the right to vote pursuant to a 1974 Supreme Court ruling in O’Brien v. Skinner. However, despite the clear legal precedent protecting voting rights for those in jail, the right remains unrealized for most incarcerated individuals due to numerous barriers. Some localities, …

Beyond Due Process: An Examination Of The Restorative Justice Community Courts Of Chicago, Jackie O'Brien

Journal of Criminal Law and Criminology

As American society has reckoned with the harmful effects of mass incarceration, there has been a push to consider alternative forms of achieving justice. Restorative justice is one such method. A transformative approach to conflict resolution inspired by the traditions and practices of indigenous peoples, restorative justice offers a comprehensive means of addressing harm, emphasizing the community, rather than the single act that caused harm. Many jurisdictions and communities have turned to restorative justice to divert cases from the punitive criminal legal system. While there are variations in programs and approaches, many communities integrate restorative justice practices as a means …

Do Prison Conditions Change How Much Punishment A Sentence Carries Out? Lessons From Federal Sentence Reduction Rulings During The Covid-19 Pandemic, Skylar Albertson

Northwestern Journal of Law & Social Policy

A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment—as contrasted with prison conditions—as the sole determinant of how much punishment a sentence carries out. Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions. Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions. The BOP used this authority almost exclusively for people who were in the final stages of terminal …

Privacy's Rights Trap, Ari Ezra Waldman

NULR Online

No abstract provided.

Reimagining Public Safety, Brandon Hasbrouck

Northwestern University Law Review

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Big Data Affirmative Action, Peter N. Salib

Northwestern University Law Review

As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated …

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Debt Governance, Wealth Management, And The Uneven Burdens Of Child Support, Allison Tait

Northwestern University Law Review

Child support is a ubiquitous kind of debt, common to all income and wealth levels, with data showing that approximately 30% of the U.S. adult population has either been subject to paying child support or has received it. Across this field of child support debt, however, unpaid obligations look different for everyone, and in particular the experiences around child support debt diverge radically for low-income populations and high-wealth ones. On the low-income end of the spectrum, child support debt is a sophisticated and adaptive governance technology that disciplines and penalizes those living in or near poverty. Being in child support …