Digital Commons Network^™

Federal Detention And “Wild Facts” During The Covid-19 Pandemic, Gabriel A. Fuentes

Journal of Criminal Law and Criminology

No abstract provided.

Juvenile Life Without Parole In North Carolina, Ben Finholt, Brandon L. Garrett, Karima Modjadidi, Kristen M. Renberg

Journal of Criminal Law and Criminology

Life without parole (LWOP) is “an especially harsh punishment for a juvenile,” as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole (JLWOP) sentences. Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, such sentencing has declined. This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to …

Retroactive Legality: Marijuana Convictions And Restorative Justice In An Era Of Criminal Justice Reform, Deborah M. Ahrens

Journal of Criminal Law and Criminology

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active …

Prosecutorial Declination Statements, Jessica A. Roth

Journal of Criminal Law and Criminology

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

Can You See And Hear Us, Ms. Smith?: Protecting Defendants’ Right To Effective Assistance Of Counsel When Using Audio And Video Conferencing In Judicial Proceedings, Ivaylo Valchev

Journal of Criminal Law and Criminology

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not …

Progressive Prosecution In A Pandemic, Chad Flanders, Stephen Galoob

Journal of Criminal Law and Criminology

No abstract provided.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Journal of Criminal Law and Criminology

No abstract provided.

Race, Reform, & Progressive Prosecution, Daniel Fryer

Journal of Criminal Law and Criminology

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial …

Prosecutors And Their State And Local Polities, Ronald F. Wright

Journal of Criminal Law and Criminology

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts.

Duties to …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Reading The Prisoner's Letter: Attorney-Client Confidentiality In Inmate Correspondence, Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, Katherine Koehler

Journal of Criminal Law and Criminology

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

In this Article, we explain the vital …

Mass Incarceration Paradigm Shift?: Convergence In An Age Of Divergence, Mugambi Jouet

Journal of Criminal Law and Criminology

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had …

Measuring Change: From Rates Of Recidivism To Markers Of Desistance, Cecelia M. Klingele

Journal of Criminal Law and Criminology

Reducing the incidence of crime is a primary task of the criminal justice system and one for which it rightly should be held accountable. The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment. This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of criminal justice interventions or of those who participate in them. This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid, stand-alone metric …

The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones

Journal of Criminal Law and Criminology

The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against …

The Downstream Effects Of Bail And Pretrial Detention On Racial Disparities In Incarceration, Ellen A. Donnelly, John M. Macdonald

Journal of Criminal Law and Criminology

Bail and pretrial detention decisions may have important consequences for racial disparities in incarceration rates. Poor minority defendants who are unable to post bail and get released from jail before trial may be more likely to plead guilty and accept longer sentences of incarceration. Racial disparities in incarceration sentences may then reflect a combination of differences in the seriousness of a defendant’s case, criminal history, and economic resources to pay bail. This study examines the extent to which bail decision-making and pretrial detention explain Black-White disparities in criminal adjudications and sentences in the Delaware courts from 2012 to 2014. Over …

Virtual Shackles: Electronic Surveillance And The Adultification Of Juvenile Courts, Chaz Arnett

Journal of Criminal Law and Criminology

In recent years, there has been a groundswell of attention directed at problems within the American criminal justice system, led in part by Michelle Alexander’s groundbreaking book, The New Jim Crow, and most recently through the efforts of the Black Lives Matter movement. This increased focus on the harms of over-incarceration and net-widening, has had the benefit of introducing to the public other practices utilized in the criminal justice system, such as the widespread use of ankle monitors to track the location of defendants and released offenders. Yet, despite this greater attention, legal scholarship has only recently begun to grapple …

Not Yet Gone, And Not Yet Forgotten: The Reasonableness Of Continued Mandatory Detention Of Noncitizens Without A Bond Hearing, Miriam Peguero Medrano

Journal of Criminal Law and Criminology

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the mandatory detention, without the possibility of bond, of noncitizens convicted of certain qualifying offenses for the duration of their removal proceedings. Congress enacted the mandatory detention statute because it was concerned that noncitizens who are convicted of crimes will further engage in criminal activity and fail to appear for their removal hearings. To ensure noncitizens are not deprived of their constitutional right to due process, federal courts have construed § 1226(c) to contain an implicit time limitation against unreasonably prolonged detention. These courts have adopted either …

Reduced Culpability Without Reduced Punishment: A Case For Why Lead Poisoning Should Be Considered A Mitigating Factor In Criminal Sentencing, Eleanor Kittilstad

Journal of Criminal Law and Criminology

The water crisis in Flint, Michigan, where residents discovered dangerous levels of lead in their water supply in 2015, has continued to unfold over the past three years and has brought the damaging effects of lead exposure to national attention. When developing children are exposed to even low levels of lead, they are at risk of developing cognitive impairments—disorders that cause aggressive behavior and diminished intellectual functioning. This Comment seeks to bring criminal law into the conversation about lead exposure and its damaging effects. Researchers have found that children exposed to lead have a higher risk of engaging in criminal …

Technological Incarceration And The End Of The Prison Crisis, Mirko Bagaric, Dan Hunter, Gabrielle Wolf

Journal of Criminal Law and Criminology

The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis Of The Role Of Racial Bias In Bond Decisions And Ideas For Reform, Lydette S. Assefa

Journal of Criminal Law and Criminology

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such …

Principles Of Pretrial Release: Reforming Bail Without Repeating Its Harms, Brook Hopkins, Chiraag Bains, Colin Doyle

Journal of Criminal Law and Criminology

Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls.

This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. …

Toward A Just Model Of Pretrial Release: A History Of Bail Reform And A Prescription For What's Next, Alexa Van Brunt, Locke E. Bowman

Journal of Criminal Law and Criminology

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain …

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 …

Profit-Driven Prosecution And The Competitive Bidding Process, Maybell Romero

Journal of Criminal Law and Criminology

Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing “prosecutorial norm” in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and …

Revisiting The Public Safety Exception To Miranda For Suspected Terrorists: Dzhokhar Tsarnaev And The Bombing Of The 2013 Boston Marathon, Hannah Lonky

Journal of Criminal Law and Criminology

This Comment examines the application of the public safety exception to Miranda to cases of domestic terrorism, looking particularly at the case of Dzhokhar Tsarnaev and the 2013 Boston Marathon bombing. By comparing the Department of Justice’s War on Terror policies to the Warren Court’s rationale for Miranda, this Comment argues that courts should require law enforcement officers to have reasonable knowledge of an immediate threat to public safety before they may properly invoke the Quarles public safety exception.

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 …

Criminalizing Terrorism In Canada: Investigating The Sentencing Outcomes Of Terrorist Offenders From 1963 To 2010, Joanna Amirault, Martin Bouchard, Graham Farrell, Martin A. Andresen

Journal of Criminal Law and Criminology

Despite having endured significant terrorist incidents over the past 50 years, terrorism-specific offenses were not criminalized in Canada until the implementation of the Anti-Terrorism Act (ATA) in 2001. One of the primary goals of this legislation was to provide law enforcement with the tools necessary to proactively prevent terrorist incidents; however, the effectiveness of these new legal measures in preventing terrorist incidents, and the potential for the increased punishment of offenders sanctioned under them, remains unclear. Using a sample of convicted terrorist offenders (n = 153) from the Officially Adjudicated Terrorists in Canada (OATC) dataset, the current study investigates …

Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin

Journal of Criminal Law and Criminology

Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …

Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control, Joshua D. Freilich, Graeme R. Newman

Journal of Criminal Law and Criminology

This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal …