Digital Commons Network^™

Political Beings: Sociopolitical Influence On Federal District Court Judges' Criminal Sentencing Behavior, Scott Harris

Graduate Theses, Dissertations, and Problem Reports (ETD)

Judicial scholars have long debated what factors influence judges' decision-making. Several competing theories have offered relatively parsimonious explanations for the motivations of appellate judges, but sources of influence for trial judges are relatively understudied. One area ripe for testing potential determinants of trial court behavior is the criminal sentencing behavior of federal district court judges. Recent empirical research has examined federal district court sentencing, but this research has often focused solely on the effects of legal policy change and judges' personal partisanship. These efforts are informative but ignore other potentially important contextual determinants of sentencing behavior, such as sentiment in …

The Next Fifteen Years, Melynda Barnhart

Articles & Chapters

No abstract provided.

Can Prosecutors Be Both Coach And Referee?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and ReconciliationCommission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront and examine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Had To Be Held Down By Big Police: A Therapeutic Jurisprudence Perspective On Interactions Between Police And Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

It is a truism that the largest mental health facilities in the nation are the nation’s largest urban jails. Most of the predictable solutions that are offered to curb the influx of individuals with mental illness into jails -- especially those that urge the loosening of civil commitment standards and the return to large psychiatric institutions -- are dreary at best, unconstitutional at heart, and mean-spirited at worst. However, we pay remarkably little attention to one of the primary causes of this reality: the decisionmaking processes "on the street" by police officers who choose to apprehend and arrest certain cohorts …

Judicial Externships, Mariana Hogan, Michael Roffer

Articles & Chapters

No abstract provided.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

Articles & Chapters

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court's decision in Atkins v. Virginia, some prosecution experts have begun using so-called "ethnic adjustments" to artificially raise minority defendants' IQ scores, making such defendants-who would otherwise have been protected by Atkins and, later, by Hall v. Florida-eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores, and …

Unraveling The Law Of War, Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Justice Harlan's Enduring Importance For Current Civil Liberties Issues, From Marriage Equality To Dragnet Nsa Surveillance, Nadine Strossen

Articles & Chapters

No abstract provided.

Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

The Drug Court Paradigm, Jessica M. Eaglin

Articles by Maurer Faculty

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent …

Cross-Sectional Challenges: Gender, Race, And Six-Person Juries, Jeannine Bell, Mona Lynch

Articles by Maurer Faculty

After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors’ race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors’ decision …

Family Involvement In Camp Adventure Child And Youth Services, Kimber Alexandra Bell

Graduate Research Papers

The basic social unit of society is the family (Benokraitis, 2003). Aristotle wrote that the family is "nature's established association for the supply of mankind's everyday wants" (Walsh, 2006, p. 76). The terrnfamily has multiple meanings. Traditionally, it is defined as "a social unit living together" or "parents and their children, whether dwelling together or not" (Benokraitis, 2003, p. 4). Families are connected with each other through bloodlines such as brothers, sisters, nephews, cousins etc., or a rite of passage or ritual that recognizes the person as a part of the family such as marriage, adoption or initiation. Western societies …

Left Unsaid: The Role Of Work Expectations And Psychological Contracts In Faculty Careers And Departure, Kerryann O’Meara, Jessica Chalk Bennett, Elizabeth Niehaus

Department of Educational Administration: Faculty Publications

Faculty leave higher education institutions for many reasons, including higher salaries, more prestigious departments, lack of collegiality, a better geographic location, and to be closer to family (O'Meara, Lounder, & Campbell, 2014; Rosser, 2004; Smart, 1990; Xu, 2008). At the same time, research suggests that factors such as a higher salary and a more prestigious department are not really "pull" factors if faculty members are satisfied and thriving within their institution (Matier, 1990; O'Meara, 2014). Rather, faculty become predisposed to leave by virtue of dissatisfaction with certain aspects of their work environment (Daly & Dee, 2006; Johnsrud & Rosser, 2002; …

The Complicated Economics Of Prison Reform, John F. Pfaff

Faculty Scholarship

No abstract provided.

Reconsidering Criminal Background Checks: Race, Gender, And Redemption, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Autism, Tara Crapnell, Lynette Lau, Christopher D. Hanks, Christina Nicolaidis, Alice Kuo

School of Social Work Faculty Publications and Presentations

Autism spectrum disorder (ASD) is a complex, lifelong neurodevelopmental condition that is marked by deficits in social communication and interaction, and repetitive or restrictive patterns of behavior, interests, or activities. These symptoms can create challenges for individuals on the autism spectrum and their parents during the transition to adulthood, which may interfere with their ability to access and receive adequate and appropriate health care. Awareness of how the challenges associated with ASD may translate to healthcare barriers can help primary care providers address the complex needs of individuals who are on the autism spectrum and mitigate the risks of additional …

United States V. R.V., Eastern District Of New York

Historical and Topical Legal Documents

No abstract provided.

One Term, Two Courts: Selected Criminal-Law Cases In The Supreme Court’S 2015-2016 Term, Charles D. Weisselberg, Juliana Devries

Court Review: Journal of the American Judges Association

In a way, we had not one but two Supreme Courts last Term.1 The first Court sat from October 5, 2015, to February 12, 2016. The Term of the successor Court began on February 13, 2016, when Associate Justice Antonin Scalia unexpectedly passed away on a Texas ranch. We will review important criminal-law decisions from both 2015-2016 Courts. But for those who adjudicate, study, prosecute, or defend criminal cases, the death of Justice Scalia was the most significant aspect of the year. Whether one was a fan of his jurisprudence or not, it is impossible to deny his outsized impact …

An Examination Of Website Advice To Avoid Jury Duty, C. Adam Coffey, David M. Sams, Stanley L. Brodsky, Tess M.S. Neal

Court Review: Journal of the American Judges Association

The use of a jury in legal proceedings can be traced as far back as the participatory democracies that emerged in Greece in the sixth century BC, although it was not until the signing of the Magna Carta that the right to a trial by a jury of one’s peers emerged.1 In the United States, the Sixth and Seventh Amendments of the U.S. Constitution expressly provide this right in both criminal and civil proceedings.2 Furthermore, these amendments provide individuals with the right to a trial before an impartial jury.3 This right intends to serve as a safeguard against unfair treatment …

Courting Abolition, Deborah W. Denno

Faculty Scholarship

This Review of Courting Death offers a different take on two of Professor Carol Steiker and Professor Jordan Steiker's major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty. The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge. In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous …

Candor In Criminal Advocacy, Bruce A. Green

Faculty Scholarship

No abstract provided.

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the …

I Don’T Believe That Answers Our Question: The Story Of White V. Woodall And How The Supreme Court’S Silence Is Adversely Affecting The Fifth Amendment Privilege, Nathan B. Hall

Oklahoma Law Review

No abstract provided.

Further Thoughts On Race, American Law, And The State Of Nature: Advancing The Multiracial Paradigm Shift And Seeking Patterns In The Area Of Race And Law, George A. Martinez

Faculty Journal Articles and Book Chapters

In his article, the author seeks to use philosophical theory - state of nature theory - as a way to understand American law and issues of race. This project, consistent with a recent trend in legal scholarship, seeks to uncover hidden meanings in law through historical analysis, cultural critique, or philosophical contemplation.

The author argues that there is a tendency for the dominant group to relate to racial minorities as if they were in the state of nature - i.e., a tendency to act as if they were in a situation without legal or moral constraints. The article examines this …

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Faculty Journal Articles and Book Chapters

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …