Digital Commons Network^™

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Faculty Articles

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.” While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration. In this review, I explain why. Bazelon is right that prosecutors have enormous discretion to decide how …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims’ Rights: Is The Military Actually Safer Than Civilian Society?, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Transportation Policy And The Underdevelopment Of Black Communities, Deborah N. Archer

Faculty Articles

Historian Manning Marable posited that “[t]he most striking fact about American economic history and politics is the brutal and systemic underdevelopment of Black people.” According to this theory, Black people “have never been equal partners in the American Social Contract, because [our] system exists not to develop, but to underdevelop Black people.” To effect this underdevelopment, racism is embedded into the core of power, the economy, culture, and society. The result is that Black people have been intentionally sacrificed to feed America’s growth and expansion. Our transportation system has always been a driver of racial inequality. Using Marable’s theory of …

Antiracism In Action, Daniel S. Harawa, Brandon Hasbrouck

Faculty Articles

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Disaggregating The Police Function, Barry Friedman

Faculty Articles

Policing imposes serious and extensive harms, from shootings and nonlethal uses of force, to stops, searches, arrests, and incarceration. And many of these harms involve pervasive racial disparities. Scholars and advocates tend to see these harms as collateral to policing and seek to address them with “harm-regulating” tools such as civil rights suits, prosecution of police officers, elimination of qualified immunity, more Department of Justice investigations, civilian review boards, and the like. Harm-regulation techniques are unlikely to be successful, however, as we see all too well in practice. Harm is not collateral to policing, it is innate to it. We …

Sacrificing Secrecy, Daniel S. Harawa

Faculty Articles

Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant’s right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant’s race, sexuality, ethnicity, and religion. Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means …

Black Redemption, Daniel S. Harawa

Faculty Articles

This Essay asserts that if Black lives matter, there needs to be a radical shift in our understanding of punishment. One necessary (but not sufficient) step must be a complete overhaul of current Eighth Amendment jurisprudence to make it reflect the notion that all people, particularly Black people, are redeemable. This requires giving teeth to the “grossly disproportional” standard for deciding whether punishment is excessive — particularly when reviewing harsh sentences imposed under habitual offender laws. It requires dispelling the idea that a child could be considered “permanently incorrigible” and thus worthy of being locked away for life. And it …

The Incoherence Of Prison Law, Justin Driver, Emma Kaufman

Faculty Articles

In recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less about the law that governs penal institutions. Yet prisons are filled with law, and prison doctrine is in a state of disarray. This Article centers prison law in debates about the failures of American criminal justice. Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called …

Tort Law And Civil Recourse, Mark A. Geistfeld

Faculty Articles

Book review of Recognizing Wrongs, by John C. P. Goldberg and Benjamin C. Zipursky, Harvard University Press, 2020.

Making Deflection The New Diversion For Drug Offenders, Kay L. Levine, Joshua C. Hinkle, Elizabeth Griffiths

Faculty Articles

The argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in …

Victims’ Rights In The Diversion Landscape, Kay L. Levine

Faculty Articles

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Hiding Homelessness: The Transcarceration Of Homelessness, Sara Rankin

Faculty Articles

Cities throughout the country respond to homelessness with laws that persecute people for surviving in public space, even when unsheltered people lack a reasonable alternative. This widespread practice—the criminalization of homelessness—processes vulnerable people through the criminal justice system with damaging results. But recently, from the epicenter of the homelessness crisis along the West Coast, the Ninth Circuit extended the Eighth Amendment’s prohibition against cruel and unusual punishment to cities prosecuting unsheltered people for sleeping or camping in public space in Martin v. Boise. Boise, supported by amici from scores of other Western cities and counties, filed a petition for …

The Meaningless Factual Basis Inquiry Of Rule 11(B)(3), Hayley Stillwell

Faculty Articles

The near extinction of the federal criminal trial necessarily means a near extinction of numerous constitutional rights when someone is charged with committing a crime. The limited constitutional protections embedded in a change of plea hearing, then, are exceptionally important to ensure the criminal justice system convicts only the guilty. The factual basis inquiry, which ensures a conviction is not obtained in violation of due process, therefore must be meaningfully enforced to protect the criminal defendant from being convicted of a crime he does not know he did not commit. Specifically, when an element of the crime charged is the …

The Trial Lottery, Kiel Brennan-Marquez, Darryl Brown, Stephen E. Henderson

Faculty Articles

Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us. In this Article, we propose a novel mechanism to (partly) restore the criminal jury to its rightful pride of place—a trial lottery. In short, a small …

Federal (De)Funding Of Local Police, Roger Michalski, Stephen Rushin

Faculty Articles

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition? This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority …

Taking Charge Of Court-Martial Charges: The Important Role Of The Commander In The American Military Justice System, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Faculty Articles

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist, and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white AngloSaxon race against the threat of …

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Y. Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Articles

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures — individualism, fiscal fragmentation, privatization, and federalism — that distort and diffuse any reach toward social justice. The profound racial disparities and …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

Policing's Information Problem, Barry Friedman, Elizabeth G. Jánszky

Faculty Articles

We spend over $100 billion each year on policing in the United States, yet have very little idea of what keeps us safe. From the adoption of new technologies like facial recognition to militarization to stop-and-frisk tactics, and much else, police in the United States pursue public safety strategies without understanding the full range of costs or benefits. There is a particularly troubling tendency to ignore the social costs (the impact policing practices have on individuals)—and the distributional costs (how policing regularly falls most heavily on racial and marginalized communities). As a result, we don’t know what keeps us safe, …

An Intersection Of Gender, Race, And Sports: Guidelines For Universities Determining Whether Athletes Accused Of Title Ix Violations Should Be Removed From Their Teams, David A. Grenardo

Faculty Articles

Sexual assault on college campuses remains an epidemic. As universities attempt to handle Title IX complaints regarding sexual misconduct, they must protect the academic environment and integrity of their schools. Since athletes are three times more likely to be accused of sexual assault than non-athletes, and schools have historically mishandled complaints against athletes, the proposed guidelines in this Article provide an equitable approach for determining when an athlete should be removed from his team based on accusations of a Title IX violation. The guidelines are based on the newly implemented Title IX regulations and take into account the interests and …

Police Funding, Stephen Rushin, Roger Michalski

Faculty Articles

A number of civil rights activists have called for the defunding or abolition of American police departments. These activists claim that the United States overinvests in police, leaving fewer scarce resources to support other government services. Activists also claim that overinvestment in policing contributes to higher rates of police misconduct and unnecessary criminalization, particularly in communities of color. This Article considers these calls for the defunding of police. It ultimately cautions against widespread defunding of police and offers an alternative proposal. Part I brings together multiple national databases on local government expenditures to evaluate empirically how states and municipalities fund …

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

How Much Is Too Much? A Test To Protect Against Excessive Fines, Daniel S. Harawa

Faculty Articles

Fines are the most common form of punishment in the United States, and are disparately imposed against poor people of color. The stories of fines ruining lives abound. Yet until last year, in most state courts, it was not clear whether a person could challenge financial punishment imposed against them as unconstitutional. That changed when the Supreme Court held in Timbs v. Indiana that the Eighth Amendment’s Excessive Fines Clause applies to the states. Despite the fact that all state and federal courts must now be equipped to decide whether financial punishment violates the Eighth Amendment, the Supreme Court has …

The Racial Composition Of Forensic Dna Databases, Erin E. Murphy, Jun H. Tong

Faculty Articles

Forensic DNA databases have received an inordinate amount of academic and judicial attention. From their inception, numerous scholars, advocates, and judges have wrestled with the proper reach of DNA collection, retention, and search policies. Central to these debates are concerns about racial equity in forensic genetic practices. Yet when such questions arise, critics typically just assert that forensic DNA databases are not demographically representative. Such assertions are expressed in vague or conclusory terms, without a citation to actual data or even to concrete estimates about the actual composition of DNA databases. This Article endeavors to fill these gaps in the …

The Army's G-Rap Fiasco: How The Lives And Careers Of Hundreds Of Innocent Soldiers Were Destroyed, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is three-fold. First, this article seeks to explore the legal and policy ramifications of the CID's multi-year criminal investigation, which targeted vast numbers of innocent Army National Guard and Army Reserve personnel for alleged criminality as contract employees in the G-RAP or AR-RAP.

Second, this article aims to highlight the CID's longstanding practice referred to as "titling"-of refusing to delete from their system of records those individuals that are subsequently cleared of any wrongdoing by their commands. This highly dubious administrative practice was particularly devastating to the hundreds of innocent and fully exonerated participants in …