Digital Commons Network^™

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson

Utah Law Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania

Northwestern University Law Review

The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is …

The Increased Exposure To Coronavirus (Covid-19) For Prisoners Justifies Early Release: And The Wider Implications Of This For Sentencing—Reducing Most Prison Terms Due To The Harsh Incidental Consequences Of Prison, Mirko Bagaric, Peter Isham, Jennifer Svilar

Pepperdine Law Review

The risk of coronavirus (COVID-19) spreading in prisons is especially acute. This has resulted in an unprecedented number of prisoners being released across the world – including many prisoners in the United States. From the health, social, and political perspectives, this is a sound approach. This is especially the situation in relation to older prisoners and those who have not been imprisoned for serious sexual and violent offenses. Despite the large number of prisoners that are being released, the United States will still have the largest prison population on earth—and by a large margin. However, the coronavirus pandemic and the …

The Intersection Of Wrongful Convictions And Gender In Cases Where Women Were Sentenced To Death Or Life In Prison Without Parole, Connor F. Lang

Michigan Journal of Gender & Law

This Note examines National Registry of Exonerations data and discusses the prevalence of false confessions and presence of a child victim in cases of women who were convicted of murder, received a serious sentence, and were later exonerated. After looking at the cases of women exonerated after receiving death sentences or life without parole sentences in light of the prevalence of these factors, this Note argues that examination of the cases reveals that the presence of a false confession or a child victim may have contributed to some of the wrongful convictions where these factors may have led to the …

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

Canadian Prosecutors’ Views On The Use Of Capital Punishment For Defined Terrorist Activity, Aswani Datt

Walden Dissertations and Doctoral Studies

In the post-9/11 world, Canada has struggled with developing a sentencing regime that effectively punishes and deters defined terrorist activity such as the attack on the Canadian Parliament, the Danforth shootings, the rise of Khalistani and Islamic terrorism, and the Toronto Van Attack. Broadly speaking, the Canadian public still supports capital punishment, but it is unclear whether Canadian prosecutors perceive and view the issue in the same light in their professional and legal capacity. Canadian prosecutors are tasked with seeking sentences that meet criminal justice principles, including the principle of deterrence. Their views on what punishments are just and effective …

Perceptions Of Child Sexual Offending Cases Involving Biological Kinship And Victim Age, Carmen Lorraine Neufeld

Walden Dissertations and Doctoral Studies

Child sexual offenders are commonly viewed as some of the worst offenders within North American society, often eliciting responses such as fear, disgust, and moral indignation. The purpose of this quantitative study was to test evolutionary theory’s notion of inclusive fitness by exploring how the relationship between child sexual offenders and victims, as well as victim age affects the public’s emotional responses including fear and aversion. In addition to affective responses, opinions regarding crime severity and length of sentence were also examined. Using a quantitative between-person experimental vignette design, 200 participants were randomly assigned a child sexual abuse case with …

Socioeconomic Status And Sentencing In Murder Cases In Manhattan, New York, Rafael Varela-Manso

Walden Dissertations and Doctoral Studies

Within the U.S. criminal justice system, defendants’ socioeconomic status (SES; not indigent being middle/high class [ $50,000] and indigent being lower class/poor [ $49,999]) may be used as a factor affecting sentencing outcome for first- or second-degree murder cases. This study examined the severity of sentencing outcomes for middle/high SES individuals versus low SES individuals being prosecuted for first- or second-degree murder in the borough of Manhattan in New York City, New York. The study focused on determining if low SES individuals were sentenced differently for first- or second-degree murder crimes than individuals of middle/high SES. This study’s theoretical framework, …

Revocation And Retribution, Jacob Schuman

Faculty Scholarship

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

“I See What Is Right And Approve, But I Do What Is Wrong”: Psychopathy And Punishment In The Context Of Racial Bias In The Age Of Neuroimaging, Alison J. Lynch, Michael L. Perlin

Lewis & Clark Law Review

In this Article, we first consider the relevant differences between antisocial personality disorder (ASPD) and psychopathy. Then, we look at the meager cohort of federal sentencing cases in which the issue of psychopathy is even raised, and consider decision-making in this context from the perspective of implicit racial bias. Next, we present some background on the controversy of “psychopathy” diagnosis; here, we share what we call the “inside baseball” about the debate— on the differences between psychopathy and ASPD—that has rocked the world of the psychology academy. We will also analyze how our current ideas about punishment and recidivism could …

Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill

Faculty Publications & Other Works

No abstract provided.

George Floyd's Legacy: Reforming, Relating, And Rethinking Through Chauvin's Conviction And Appeal Under A Felony-Murder Doctrine Long-Weaponized Against People Of Color, Greg Egan

Mitchell Hamline Law Review

No abstract provided.

Prosecutors And Mass Incarceration, Shima Baradaran Baughman, Megan Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Redefining Sex Offenders: The Fight To Break The Bias Of Female Sex Offenders, Norma Hamilton

Journal of Race, Gender, and Ethnicity

No abstract provided.

Racial Bias Still Exists In Criminal Justice System? A Review Of Recent Empirical Research, Yu Du

Touro Law Review

The debate on whether racial bias is still embedded in the criminal justice (CJ) system today has reached its plateau. One recent article in the Washington Post has claimed an overwhelming evidence of racial bias in the CJ system. Whereas some scholars argue that racial disparity is an epitome of real crime rates, others indicate that implicit and/or explicit racial bias against Blacks held by law enforcement agents persists in the system. This review considers both supporting arguments and relevant counterarguments. After evaluating empirical and rigorous research during the past five years, the review maintains that racial bias still exists …

Standing Between The Past And The Future, How Defense Attorneys Use Stigma Management Techniques In Presenting Their Closing Arguments In Capital Sentencing Procedures: A Content Analysis, Abdulrahmane Abdul-Aziz

All Graduate Theses, Dissertations, and Other Capstone Projects

In the penalty-phase of a capital case, defense attorneys face a difficult task in managing the identity of their now convicted client. They must present a coherent narrative that combats the prosecution’s case and engenders leniency from the jury. The closing argument given by the defense attorney(s) provides a unique opportunity to analyze and understand the general use of stigma management techniques and their applicability to capital cases. Using content analysis, 18 Transcripts from Texas capital cases from 2005 to 2015 were analyzed against the relevant techniques of neutralization (Sykes & Matza, 1957): appeal to a higher loyalty, appeal to …

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Sentencing Length Disparity Across Gender And Race For Drug Offenses, Alexis Griggs

Walden Dissertations and Doctoral Studies

Research on sentencing outcomes have concentrated on disparities between gender and race with a range of influences in legal decision making. This study was an examination of whether the same form of sentencing inconsistency is found with offenders who were convicted of drug offenses. A quantitative method (ANCOVA) was used to analyze the difference in sentencing outcomes. Data from the United States Sentencing Commission from 2016 fiscal year were used to investigate the role of gender and race in sentencing disparity and examine whether an offender’s prior sentencing history and drug amount influences sentencing outcomes. The results of this study …

Influencing Legislation For Juveniles In The Adult Judicial System: A Phenomenological Examination Of Legal Advocates, Krista F. Franklin

Antioch University Dissertations & Theses

INFLUENCING LEGISLATION FOR JUVENILES IN THE ADULT JUDICIAL SYSTEM: A PHENOMENOLOGICAL EXAMINATION OF LEGAL ADVOCATES Krista Franklin Antioch University Seattle Seattle, WA This phenomenological study explores the lived experience of Washington State lawmakers and legal activists regarding their involvement in passing Washington State Senate Bill 5064 in February 2014. In response to the 2012 landmark federal Supreme Court decision, Miller v. Alabama, Senate Bill 5064 reduced the number of crimes for which juveniles could be sentenced as adults to life without parole. Six interviewees were selected from those who testified in Olympia, WA. Individual interviews were conducted in an open-ended …

Starting With Life: Murder Sentencing And Feminist Prison Abolitionist Praxis, Debra Parkes

All Faculty Publications

Advocates of decarcation often focus their critiques on imprisonment for non-violent offences. In this vein, current advocacy efforts to end mandatory sentences in Canada tend to carve out “serious violent offences” as not part of a reform agenda. In this chapter, Debra Parkes sketches out the contours of an argument for why feminists might not want to cede that ground, why anti-carceral feminism might involve centering our analysis on the most, rather than the least, serious crimes – starting with those who are serving life sentences for murder. Parkes identifies four non-exhaustive reasons for that focus. The first reason relates …

Disparity In Context: Judges’ Perspectives On Disparities In A Sentencing Guideline System, Justin M. Smith

Qualitative Criminology (QC)

"Unwarranted disparity in sentencing continues to be a problem in criminal courts. Sentencing, a final step in the multi-stage process of criminal justice, is seen as such an important component of ensuring consistency that legislative policy has created guidelines to control judicial decision-making. Nonetheless, research shows that disparity under sentencing guidelines persists due to influences external to the law - referred to as substantive rationality. Sentencing research overwhelmingly utilizes quantitative analysis of official court data to produce its conclusions about the influences of disparity. The current study builds upon past research by using qualitative analysis of interviews with 20 judges …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver

Michigan Law Review

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers …

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

A Framework For The Efficient And Ethical Use Of Artificial Intelligence In The Criminal Justice System, Dan Hunter, Mirko Bagaric, Nigel Stobbs

Florida State University Law Review

Machine learning techniques are transforming the manner in which much of the legal system works, and criminal justice is the area which will be most fundamentally changed. Given the fundamental rights and interests at stake in the criminal justice system, this is also the field where the unthinking application of artificial intelligence ("AI") is most troubling, and where there is the greatest threat to individual rights and the likelihood of unanticipated damage to the rule of law. These problems will occur (and are occurring) throughout the criminal justice system: from data-driven predictive policing systems in the criminal investigation process, through …

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

“We Can’T Just Throw Our Children Away”: A Discussion Of The Term-Of-Years Sentencing Of Juveniles And What Can Be Done In Texas, Anjelica Harris

Texas A&M Law Review

In the words of Supreme Court Justice Elena Kagan, children are different. The issue of how to sentence juvenile offenders has long been controversial. Although psychology acknowledges the connection between incomplete juvenile brain development and increased criminality, the justice system lags behind in how it handles juvenile offenders. A prime example is the case of Bobby Bostic, who at the age of sixteen was charged with eighteen offenses and sentenced to 241 years in prison. This sentence, known as a term-of-years or virtual life sentence, essentially guarantees that no matter what Bobby does or who he proves himself to be …

Supervised Release Is Not Parole, Jacob Schuman

Loyola of Los Angeles Law Review

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to …

An Investigation Of White-Collar Criminal Sentencing Disparities In Six Federal District Courts, Lauren Frances Elizabeth Galloway

UNLV Theses, Dissertations, Professional Papers, and Capstones

Since the turn of the century, sentencing research has consistently shown that certain aspects of the social context generally condition individual-level sentencing variations. I further explore this postulation in assessing how legal changes affect courtroom decisions; and in analyzing how extra-legal offender characteristics and judicial attributes influence the likelihood and length of white-collar incarceration sentences. The study hypothesized an emergent sociotemporal trend, largely driven by implementation of white-collar sentencing legislation and a return to judicial discretion, whereby white-collar offenders sentenced in the years post-Booker would receive more lenient punishments (i.e., less likely to be incarcerated and shorter incarceration sentences) than …