Law Commons^™

Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman

Journal Articles

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken M. Levy

Journal Articles

For over a century now, American scholars (among others) have been debating the merits of “bad-samaritan” laws – laws punishing people for failing to attempt “easy rescues.” Unfortunately, the opponents of bad-samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states even have bad-samaritan laws, and these laws impose only the most minimal punishment – either sub-$500 fines or short-term imprisonment.

This Article argues that this situation needs to be remedied. Every state should criminalize bad samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Proportionality And Federalization, Stephen F. Smith

Journal Articles

The thesis of this Article is that proportionality of punishment has become a casualty of federalization and that the federal courts helped kill it. The federal courts like to portray themselves as the victims in the vicious cycle of federalization, left defenseless in the face of rapacious efforts by Congress and the Department of Justice to use the federal criminal code for their own selfish ends. The federal judiciary repeatedly complains that its judges are overburdened with criminal cases that belong in state court. This is the story the leading lights in the academy have accepted: Congress is responsible for …