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Criminal Data Function Creep, Sarah E. Lageson

Journal of Criminal Law and Criminology

Automated, data-driven decision-making can create unfair outcomes and lead to discrimination. This Article considers a relatively ubiquitous part of modern life that is increasingly automated: the criminal background check. This Article, with contributions at the intersection of law and technology, antidiscrimination and consumer protection law, and sociological theory, makes the central claim that criminal record data is characterized by function creep—the unintended use of data for another purpose—which leads to a specific set of harms. This Article makes three central contributions. First, it offers an empirical assessment of contemporary, data-driven background screening using data based on in-depth interviews and systematic …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Institutional Structures Of Penal Inequality, Alexandra Natapoff

Journal of Criminal Law and Criminology

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger …

Forbidden Purposes: A New Path For Limiting Criminalization, Raff Donelson

Journal of Criminal Law and Criminology

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, …

Sacred Victims: Fifty Years Of Data On Victim Race And Sex As Predictors Of Execution, Scott Phillips, Justin F. Marceau, Sam Kamin, Nicole King

Journal of Criminal Law and Criminology

In this essay, we update and expand David Baldus’s famous study of Georgia homicides in the 1970s to uncover the impact of the race and sex of homicide victims on whether a defendant was sentenced to death and ultimately executed. We show that the odds of a death sentence were sixteen times greater if the victim was a White woman than if the victim was a Black man, even when other factors that might explain the disparity were taken into account. Furthermore, we identified a clear hierarchy among victims with regard to whether a death sentence was ultimately carried out. …

Past, Prologue, And Constitutional Limits On Criminal Penalties, Maria Hawilo, Laura Nirider

Journal of Criminal Law and Criminology

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state.

This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to …

Abolition Of What?, Christopher Lewis, Adaner Usmani

Journal of Criminal Law and Criminology

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about.

This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less …

Beyond Bars: Exploring Alternative Possibilities To Address Sexual And Gender Based Violence, Rachel Ensign Habliston

Journal of Criminal Law and Criminology

Many people agree that the United States carceral system is flawed. However, it can be difficult to discuss alternative ways to address violence that do not involve incarceration. Aside from the carceral system, there are other pathways to accountability and healing. Exploring these pathways for perpetrators of heinous crimes, such as sexual and gender-based violence (SGBV), is an overwhelming and under-reviewed endeavor. This Comment seeks to broaden perspectives about how society can hold people accountable for committing acts of SGBV by surveying progressive prosecution, restorative justice, and transformative justice as potential alternatives to the current carceral system. Part I provides …

Categorical Declinations & Democracy, Brenner M. Fissell

Journal of Criminal Law and Criminology

The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights …

Toward A Socio-Legal Theory Of Male Rape, Orna Alyagon-Darr, Ruthy Lowenstein Lazar

Journal of Criminal Law and Criminology

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. …

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 …

Theorizing Failed Prosecutions, Jon B. Gould, Victoria M. Smiegocki, Richard A. Leo

Journal of Criminal Law and Criminology

Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this Article, we take up an analysis of failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from …

U.S. Hate Crime Trends: What Disaggregation Of Three Decades Of Data Reveals About A Changing Threat And An Invisible Record, Brian Levin, James Nolan, Kiana Perst

Journal of Criminal Law and Criminology

When prejudice-related data are combined and analyzed over time, critical information is uncovered about overall trends, related intermittent spikes, and less common sharp inflectional shifts in aggression. These shifts impact social cohesion and grievously harm specific sub-groups when aggression escalates and is redirected or mainstreamed. These data, so critical to public policy formation, show that we are in such a historic inflection period now. Moreover, analysis of the latest, though partial Federal Bureau of Investigation hate crime data release, when overlaid with available data from excluded large jurisdictions, reveals hate crimes hit a record high in 2021 in the United …

The Conundrums Of Hate Crime Prevention, Shirin Sinnar

Journal of Criminal Law and Criminology

The recent surge in hate crimes alongside persistent concerns over policing and prisons has catalyzed new interest in hate crime prevention outside the criminal legal system. While policymakers, civil rights groups, and people in targeted communities internally disagree on the value of hate crime laws and law enforcement responses to hate crimes, they often converge in advocating measures that could prevent hate crimes from occurring in the first place. Those measures potentially include educational initiatives, conflict resolution programs, political reforms, social services, or other proactive efforts aimed at the root causes of hate crimes.

Focusing on the public conversation around …

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …

Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis

Journal of Criminal Law and Criminology

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …

Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley

Journal of Criminal Law and Criminology

Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …

Judicial Responses To Age And Other Mitigating Evidence: An Exploratory Case Study Of Juvenile Life Sentences In Pre-Miller Cases, José B. Ashford, Katherine Puzauskas, Robert Dormady

Journal of Criminal Law and Criminology

This study describes how judges in Maricopa County, Arizona responded to age and other mitigation evidence in imposing “life” versus “natural life” sentences for juvenile offenders convicted of homicide in pre-Miller cases. Maricopa County was selected for this case study because of its history of adhering to “restrictive interpretations” of various kinds of mitigation evidence and because of the characteristics of this county’s local court community. The study employed a mixed-methods design consisting of a content analysis of relevant case documents and a quantitative analysis of the findings from the qualitative analyses of legal case documents. It examined 82% …

The Corporate Insanity Defense, Mihailis E. Diamantis

Journal of Criminal Law and Criminology

Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where …

The Specific Deterrent Effects Of Criminal Sanctions For Intimate Partner Violence: A Meta-Analysis, Joel H. Garner, Christopher D. Maxwell, Jina Lee

Journal of Criminal Law and Criminology

A dozen systematic reviews published since 1978 have sought to clarify the complexities of deterrence theory. These reviews emphasize the general deterrent effects of police presence, arrest, and incarceration on rates of homicide and other serious crimes, such as assault, rape, and burglary. These reviews provide less attention to specific deterrence processes and to the deterrent impacts of intermediate sanctions, such as prosecution or conviction; none of these reviews incorporate any of the research on criminal sanctions for intimate partner violence. To address these limitations, this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal …

Constitutional Pandemic Surveillance, Matthew B. Kugler, Mariana Oliver

Journal of Criminal Law and Criminology

How do people view governmental pandemic surveillance? And how can their views inform courts considering the constitutionality of digital monitoring programs aimed at containing the spread of a highly contagious diseases? We measure the perceived intrusiveness of pandemic surveillance through two nationally representative surveys of Americans. Our results show that even at the height of a pandemic people find surveillance for public health to be more intrusive than surveillance for traditional law enforcement purposes. To account for these strong privacy concerns, we propose safeguards that we believe would make cell phone location tracking and other similar digital monitoring regimes constitutionally …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Journal of Criminal Law and Criminology

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu

Journal of Criminal Law and Criminology

Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes …

"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

Journal of Criminal Law and Criminology

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …

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 …

Rural Spaces, Communities Of Color, And The Progressive Prosecutor, Maybell Romero

Journal of Criminal Law and Criminology

The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors.

Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and …

"I Heard It Through The Grapevine": A Randomized Controlled Trial On The Direct And Vicarious Effects Of Preventative Specific Deterrence Initiatives In Criminal Networks, Barak Ariel, Ashley Englefield, John Denley

Journal of Criminal Law and Criminology

A rich body of literature exists on deterrence, yet little is known about how deterrence messages are communicated through social networks. This is an important gap in our understanding, because such communication gives rise to the possibility that social institutions can utilize the vicarious effect of the threat of punishment against one individual to reduce the rate of reoffending amongst their criminal associates. To test this, we identified criminals with an extensive offending history (prolific offenders) and their co-offenders using social network analysis and then conducted a randomized controlled trial to measure the effect on both prolific offenders and their …

Torture And Respect, Jacob Bronsther

Journal of Criminal Law and Criminology

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment—torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain …

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 …

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 …