Law Commons^™

Qualified Immunity And Unqualified Assumptions, Teressa E. Ravenell, Riley H. Ross Iii

Journal of Criminal Law and Criminology

Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense -- even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair …

Recalibrating Qualified Immunity: How Tanzin V. Tanvir, Taylor V. Riojas, And Mccoy V. Alamu Signal The Supreme Court's Discomfort With The Doctrine Of Qualified Immunity, Patrick Jaicomo, Anya Bidwell

Journal of Criminal Law and Criminology

In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The …

Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …

Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman

Northwestern University Law Review

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …

Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle …

A Criminal Law We Can Call Our Own?, R A Duff

Northwestern University Law Review

This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity …

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

Northwestern University Law Review

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous.

But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal …

White Paper Of Democratic Criminal Justice, Joshua Kleinfeld, Laura I. Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R A Duff, Albert W. Dzur, Thomas F. Geraghty, Adriaan Lanni, Marah Stith Mcleod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler, Ekow N. Yankah

Northwestern University Law Review

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.