Digital Commons Network^™

An Intersectional Approach To Race/Ethnicity, Sex, And Age Disparity In Federal Sentencing Outcomes: An Examination Of Policy Across Time Periods, Jeffrey Nowacki

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Approaches to intersectionality stress the importance of recognizing multiple, intersecting inequalities. As such, recent sentencing research has examined the changing role of extra-legal characteristics on United States federal sentencing outcomes in the aftermath of recent policy changes (e.g., United States v. Booker), but scholarship has less often examined these characteristics at the intersections of race/ethnicity, gender, and, especially age. This article uses an intersectional approach to examine the influence of these characteristics net of legally-relevant characteristics. Using ordinary-least squares regression procedures, the author examines the role of the joint effects of extra-legal variables on sentence length decisions across four distinct …

Creating (And Teaching) The "Bail-To-Jail" Course, Jerold H. Israel

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Yale Kamisar has explained how events that occurred about fifty years ago led to the creation of a stand-alone criminal procedure course and, a few years later, led to the division of that stand-alone course into two courses. The second of those courses came to be called, almost from the outset, the "Jail-to-Bail" course. My focus today is on why that course was created and how it was shaped. Modern Criminal Procedure, as Yale has noted, was the first coursebook designed for a stand-alone course in criminal procedure. Modern was published in 1966. A year earlier, the first version …

How The Fourth Amendment And The Separation Of Powers Rise (And Fall) Together, Aziz Huq

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No abstract provided.

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

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The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

Charging On The Margin, Paul Crane

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No abstract provided.

Links Between Depressive Symptoms And Unmet Health And Social Care Needs Among Older Prisoners, Kate O'Hara, Katrina Forsyth, Roger Webb, Jane Senior, Adrian Hayes, David Challis, Seena Fazel, Jenny Shaw

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Background: absolute numbers of older prisoners and their proportion of the total prison population are increasing. They have multiple health and social care needs that are prominent on entry into prison. No previous studies have identifed older prisoners’health and social care needs at this crucial point Objective: to examine unmet health and social care needs among older men entering prison and their links with depressive symptoms.

Monroe Freedman: Prophet Of Biblical Justice, Timothy W. Floyd

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Professor Monroe Freedman’s distinctive view of legal ethics was individual autonomy. Professor Freedman’s provocative Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, and his even more provocative answers, have drawn criticism as being too focused on individual autonomy.

Certainly, Monroe had a profound respect for individual dignity and autonomy, and he readily asserted that respect for individual autonomy was central to his view of legal ethics. In what follows, however, I will suggest that his emphasis on dignity and autonomy were derived from an even deeper commitment to justice. More particularly, Monroe Freedman had a passion for …

Men, Women, And Optimal Violence, Mary Anne Franks

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While both men and women can, and do, use violence against each other, men's violence against women is far more common, less justified, and more destructive than women's violence against men. One of the reasons for this asymmetry is that men do not fear retaliation for violence against women, whereas women do fear retaliation for their use of violence against men. The distribution of violence between the genders, then, is suboptimal. Society would be better off as a whole if more women were willing to engage in justified violence against men, and fewer men were willing to engage in unjustified …

A Nearly Perfect System For Convicting The Innocent, Albert W. Alschuler

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No abstract provided.

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

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Mainstream pro-immigrant law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework for immigration reform that draws its narrative force from a contrast with people-citizens and noncitizens-who have been convicted of a criminal offense and proposes an alternate approach that better aligns with racial and class critiques of the U.S. criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided …

Judicial Lawmaking And General Principles Of Law In International Criminal Law, Neha Jain

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General principles of law are a primary mechanism for “gap-filling” in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal …

Seeking Clemency For Inmates Serving Outdated Sentences, Janeanne Murray

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No abstract provided.

Crime Logic, Campus Sexual Assault, And Restorative Justice, Donna Coker

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No abstract provided.

The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave

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No abstract provided.

Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr

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In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …

The Just-Barely-Sustainable California Prisoners' Rights Ecosystem, Margo Schlanger

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Over the past two decades, the United States has seen a marked decline in the frequency and depth of court interventions in prisons and jails. Prisoners’ rights litigation has not disappeared—but it has been drastically curtailed by the 1996 Prison Litigation Reform Act (PLRA), along with myriad other forces, doctrinal and political. The PLRA, enacted as part of the Newt Gingrich “Contract with America,” undermined prisoners’ ability to bring, settle, and win lawsuits. (Schlanger 2003; Schlanger 2006)

The resulting impact on jail and prison litigation has been extremely substantial. Significant prisoners’ rights cases certainly remain on court dockets, and new …

Rebellious Pedagogy And Practice, Anthony V. Alfieri

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Gerald Lopez's ground breaking book, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice, introduced new critical pathways and perspectives for clinical educators to better understand and enhance their advocacy, teaching, and scholarship. Indeed, Lopez's interdisciplinary investigation of the local, sociocultural context of the lawyering process produced a marked shift in both the pedagogy and the practice of public interest law, particularly civil rights and poverty law. A quarter century after its publication, Rebellious Lawyering stands out not only for its contextual critique of lawyering theory and practice, but also for its multifaceted integration of law, cultural studies, race …

Reentering Survivors: Invisible At The Intersection Of The Criminal Legal System And The Domestic Violence Movement, Courtney K. Cross

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Like all returning citizens, women coming home after incarceration face significant challenges to successful reentry. In addition to the collateral consequences of their criminal convictions, reentering women also encounter uniquely gendered obstacles. This Article explores one such obstacle: the relationship between women's reentry and domestic violence. Women on probation or parole who are also experiencing domestic violence too often fall into a blind spot in which the structure of community supervision pressures them to remain in unsafe homes and also punishes them when the abuse they endure interferes with their ability to comply with the conditions of their release. Because …

The Tribes Of Maycomb County: The Continuing Quest To Transcend Our Differences, Steven H. Hobbs

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No abstract provided.

Clientless Prosecutors, Russell M. Gold

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No abstract provided.

The Pendulum Swings: Reconsidering Corporate Criminal Prosecution, David M. Uhlmann

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Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate criminal prosecution. Some argue that corporations should face criminal prosecution for their misconduct, while others would reserve criminal prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred prosecution and non-prosecution agreements for some corporate crimes, even as the government continues to bring criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better …

Confronting Power In Public Law, Kate Andrias

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In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger

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Opposition to mass incarceration has entered the mainstream. But except in a few states, mass decarceration has not, so far, followed: By the end of 2014 (the last data available), nationwide prison population had shrunk only 3% off its (2009) peak. Jail population, similarly, was down just 5% from its (2008) peak. All told, our current incarceration rate - 7 per 1,000 population - is the same as in 2002, and four times the level in 1970, when American incarceration rates began their rise. Our bloated prisoner population includes many groups of prisoners who are especially likely to face grievous …

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

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In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Standing, Politics, And Exhaustion: A Response To Legislative Exhaustion, Heather Elliott

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Professor Michael Sant'Ambrogio's article, Legislative Exhaustion, usefully approaches the problem of "legislative standing" by abandoning the typical Article III standing analysis and making instead a separation-of-powers argument. His theory-that Congress may sue the President only when it has no legislative avenue for addressing its problems-provides both a workable account of and a limiting principle for suits by the legislative branch against the executive. His analysis, however, raises questions regarding the effect of legislative lawsuits on the constitutional balance of powers. This Essay suggests that these questions should be more fully explored before Professor Sant'Ambrogio's approach can be adopted. It concludes …

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

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The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …

Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes

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No abstract provided.

On Legal Scholarship: Questions For Judge Harry T. Edwards, Ronald K.L. Collins

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The life of Judge Harry T. Edwards is one very much steeped in writing. His passion dates back at least to his years at Uniondale High School when he was the editor of the school newspaper. In the legal realm, that passion traces back to 1964 and his days on the Michigan Law Review when he published two student Notes. In the half-century since then, Judge Edwards has authored six books and more than 90 scholarly articles or essays. As a lawyer, educator, administrator, arbitrator, and now jurist, Harry Edwards has put his ideas into print concerning an array of …

Challenging The "Criminal Alien" Paradigm, Angélica Cházaro

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Deportation of so-called “criminal aliens” has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants’ rights advocates, conventional wisdom holds that if deportations must occur, “criminal aliens” should be the first to go. A voluminous “crimmigration” scholarship notes the ever-growing entwinement of criminal and immigration enforcement, but does not challenge this fundamental premise.

This Article calls for a rejection of the formulation of the “criminal alien”—the figure used to increasingly justify the preservation and expansion of a harmful immigration regime. It thus …

Police Stories, Helen A. Anderson

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As lawyers and judges know, the facts, and the stories created with those facts, make the law: “[A] case well stated is more than half argued.” The police narrative is one of the most common narratives in legal writing, simply because there are so many criminal cases, as well as numerous civil cases, involving police. For the most part, these narratives tell the familiar story of the hardworking, careful police officer in a challenging situation with dangerous criminals.

These narratives do much of the work of an appellate argument, just as Chief Justice Robert’s story about Officer Devlin makes the …