Digital Commons Network^™

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Against Life Without Parole, Judith Lichtenberg

Georgetown Law Faculty Publications and Other Works

Over 40,000 people in the United States today are serving life without parole sentences (LWOP)—more than triple the number in 1992. This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it. I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it. So we can reject LWOP without abandoning retributivism—an important …

Punishing Criminals For Their Conduct: A Return To Reason For The Armed Career Criminal Act, Sheldon Evans

Scholarship@WashULaw

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes. In an effort to …

Sentencing Reform: Fixing Root Problems, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, …

The Habitual Offenders, Beth Shelburne Storr

All ETDs from UAB

The Habitual Offenders is a work of literary journalism, written as a piece of first-person creative nonfiction. The collection of chapters explores a specific class of prison inmates in Alabama, sentenced to life without parole under a three strikes law. Major themes include fairness and disparity in the criminal justice system, politics, race and the community fallout from mass incarceration. This work reflects writing traditions from both investigative/narrative journalism and personal memoir.

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

Criminal Employment Law, Benjamin Levin

Scholarship@WashULaw

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Give Them A Chance: Public Attitudes To Sentencing Young Offenders In Western Australia, Suzanne Ellis, Natalie J. Gately Dr, Shane Rogers, Andree Horrigan

Research outputs 2014 to 2021

Public opinion is often reported as punitive towards sentencing young people. Attitudes remain important to investigate given their potential to influence policy within the criminal justice system. Therefore, it is important to understand the formation of these attitudes and their consistency with sentencing principles. Semi-structured interviews (n = 72) and surveys (n = 502) were used to gauge opinions of sentencing young people under different scenario manipulations (age, weapon, drug treatment, prior record). The findings revealed the public expected punishment, but favoured rehabilitation with an opportunity to repent, suggesting the public are open to alternatives to ‘tough on …

Remorse Bias, M. Eve Hanan

Scholarly Works

In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants' expressions of remorse as insincere and, thus, …

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power …

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the …

Constructing Recidivism Risk, Jessica Eaglin

AI-DR Collection

Courts increasingly use actuarial—meaning statistically derived—information about a defendant’s likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face distinct interests that …

Thinking Inside The Box: Placing Form Over Function In The Application Of The Statutory Sentencing Procedure In State Of Maine V. Eugene Downs, Matthew E. Lane

Maine Law Review

In State v. Hewey, the Maine Supreme Judicial Court found that the sentencing court erred in imposing a sentence that exceeded the maximum applicable period of incarceration for a Class A crime and accordingly vacated the sentence. Perhaps more importantly, the Law Court used the case as an “opportunity for clarification of [its] review of an appeal from a sentence imposed by the trial court.” A unanimous court sought to clear up some inconsistencies in previous decisions regarding “the terminology used to define each of the three steps” of the sentencing process by better describing the procedure “by which the …

Open Source: The Enewsletter Of Rwu Law 09-22-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani

Washington and Lee Law Review Online

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, …

Juvenile Lifers And Juveniles In Michigan Prisons: A Population Of Special Concern, Kimberly A. Thomas

Articles

Prisoners serving life without parole for offenses they committed when they were juveniles have received much attention after the United States Supreme Court found in Miller v Alabama that mandatory life without parole for juveniles violated the Eighth Amendment and found that its Miller decision applied retroactively. Courts have begun the process of sentencing and resentencing these individuals, some of whom are still teens and some of whom have served 40 years or more in the Michigan Department of Corrections (MDOC). All told, not including new cases that come before the court, approximately 370 prisoners will receive individualized sentences under …

Five Questions For The Next Thirty Years Of Federal Sentencing, Steven L. Chanenson

Faculty Publications

No abstract provided.

Why Prosecutors Rule The Criminal Justice System—And What Can Be Done About It, Jed S. Rakoff

Northwestern University Law Review

Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have …

Perspective-Taking Of The Defendant: Does Race Influence The Final Sentencing Verdict For Mock Jurors?, Matthew A. Pardo

College of Science and Health Theses and Dissertations

The main objective of this study is to test whether there are disparities in a final sentencing verdict, of a guilty defendant that identifies as either African-American or Caucasian. Using a mock-jury design, participants were randomly assigned to the police report of Jamal Washington (representing the African-American defendant), or Greg Sullivan (representing the Caucasian defendant). Additionally, participants were randomly assigned to either take the perspective of the defendant or not to take the perspective of the defendant (control). This combination of race and perspective-taking as manipulations allows for the examination of the extent of racial schemas in courtroom settings through …

Racial Salience In Context: The Role Of Visual Information On Conviction Decisions, Krystia Grembocki

Undergraduate Psychology Research Methods Journal

Jurors arguably play the most influential role in determining the outcome of most criminal trials. The U.S. legal system relies on them to make unbiased, substantiated decisions based on evidence presented in court. The problem with this expectation is that jurors are ordinary people who are subject to the influence of extralegal factors – variables that are not legally related to a case (e.g. how a defendant looks). Unfortunately, when jurors hold implicit biases regarding the appearance of defendants, extralegal factors, such as race, tend to have at least some impact on their verdict (Maeder & Hunt, 2011; Mitchell, Haw, …

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

Articles

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 …

Supervised Release Sentences Of Child Pornography Offenders In U.S. District Courts: An Examination Of Disparity, Niquita Marie Loftis

Dissertations

The statutory supervised release sentencing range for child pornography offenders convicted in U.S. District Courts is five years to life. However, the guideline policy statement contained in the Federal Sentencing Guidelines recommends lifetime supervision for all child pornography offenders. U.S. Sentencing Commission (USSC) data for fiscal year 2012 indicate that only approximately 33% of child pornography offenders were sentenced to lifetime supervision. This variation suggests the possibility of unwarranted supervised release sentencing disparities. The dissertation explores this possibility by examining the effects of individual-level legal and extralegal factors and district-level contextual factors on supervised release sentences for child pornography offenders. …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

Post-Trial Plea Bargaining And Predictive Analytics In Public Law, Harold J. Krent

Washington and Lee Law Review Online

Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the criminal defendant can benefit—the state saves resources while the defendant gets off death row.

Gershowitz’s article, therefore, affords a window into the increasing use of predictive analytics in deciding whether to bring or resolve litigation. Sifting through data on all prior capital cases can yield …

The Sentencing Memorandum: The Legal And Societal Implications Of Its Online Publication, Jacob Grimes

Saint Louis University Public Law Review

No abstract provided.

Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter

Faculty Articles

The 2016 amendments to the Uniform Code of Military Justice (“UCMJ”) amounted to a sea change in American military justice. The Military Justice Act of 2016—a major reform of the Uniform Code of Military Justice—is set out in Division E of the National Defense Authorization Act for Fiscal Year 2017, and was signed into law by the President on December 23, 2016. Most of the amendments to the UCMJ addressed in this article will not become effective for some time—perhaps not until January 1, 2019 and in the interim, the current provisions of the UCMJ will continue to apply. Overall, …

Mental Health Courts And Sentencing Disparities, E. Lea Johnston, Conor P. Flynn

UF Law Faculty Publications

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court—including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of …

Informed Misdemeanor Sentencing, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, …

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …