Law Commons^™

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Proxy Crimes And Overcriminalization, Youngjae Lee

Faculty Scholarship

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, …

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Criminal Histories And Criminal Futures, Youngjae Lee

Faculty Scholarship

No abstract provided.

Physician Participation In Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Decarceration’S Blindspots, John F. Pfaff

Faculty Scholarship

For over a decade, my research has focused on trying to answer one simple question: how did the United States, home to about 5% of the world’s population, come to house nearly 25% of its prisoners?1 We were not always the world’s largest jailer; as recently as the 1970s, our incarceration rate was largely indistinguishable from those in other liberal democracies. Yet starting in the mid-1970s, as Figure 1 shows, that rate started to slowly—but steadily and relentlessly—grow, until by the late 2000s it rivaled and then surpassed even the rates seen in autocratic countries like Cuba and Belarus and …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg

Res Gestae

Nineteen years after Judge Lynch’s piece, "Our Administrative System of Criminal Justice," this Article considers recent developments in the criminal justice system and whether Judge Lynch’s observations have withstood the test of time. It suggests that Judge Lynch’s observation—that our criminal justice system has strayed far from the model of the adversarial system—remains as true today as it was when he made it in 1998. It further explains that developments in the nineteen years since the publication of “Our Administrative System of Criminal Justice” have caused the criminal justice system to stray even further from the adversarial model and in …

Weaver V. Commonwealth Of Massachusetts, Bruce Green, Russell Pearce

Amicus Briefs

No abstract provided.

Johnson V. Kelley, Bruce Green

Amicus Briefs

No abstract provided.

David Brown Versus Louisiana, Charles Ogletree, Ronald Sullivan

Amicus Briefs

No abstract provided.

The Complicated Economics Of Prison Reform, John F. Pfaff

Faculty Scholarship

No abstract provided.

Amicus Brief In Terrance Williams V Pennsylvania, Lawrence J. Fox

Amicus Briefs

No abstract provided.

Can Criminal Law Do Without Moralism?, Review Of Crime And Punishment: A Concise Moral Critique By Hyman Gross, Youngjae Lee

Faculty Scholarship

This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012).

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.

Actual Innocence In New York: The Curious Case Of People V. Hamilton, Benjamin E. Rosenberg

Res Gestae

It is rare for a case from the New York Appellate Division to be as significant as People v. Hamilton. The case, however, was the first New York appellate court decision to hold that a defendant might vacate his conviction if he could demonstrate that he was “actually innocent” of the crime of which he was charged. Although the precedential force of the decision is limited to the Second Department, trial courts throughout the state are required to follow Hamilton unless or until the appellate court in their own Department rules on the issue. Courts throughout the state are …

Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky

Faculty Scholarship

Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.

Lethal Injection Chaos Post-Baze, Deborah W. Denno

Faculty Scholarship

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little …

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

What Is Philosophy Of Criminal Law?, Review Of The Oxford Handbook Of Philosophy Of Criminal Law By John Deigh & David Dolinko, Eds., Youngjae Lee

Faculty Scholarship

No abstract provided.

Escaping From The Standard Story: Why The Conventional Wisdom On Prison Growth Is Wrong, And Where We Can Go From Here, John F. Pfaff

Faculty Scholarship

Whether as a result of low crime rates, the financial pressures of the 2008 credit crunch, or other factors, policymakers on both sides of the aisle are trying to rein or even reduce the US incarceration rate after an unprecedented forty-year expansion. Unfortunately, reforms are hampered by the fact that we do not have a solid empirical understanding of what caused the explosion in the first place. In fact, the "Standard Story" of prison growth generally overemphasizes less important factors and overlooks more important ones. This essay thus does two things. First, it points out the flaws in five key …

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Faculty Scholarship

In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …

What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

Faculty Scholarship

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Military Veterans, Culpability, And Blame, Youngjae Lee

Faculty Scholarship

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff

Faculty Scholarship

This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

How Many Lives Has Victor Streib Saved? A Tribute, Deborah W. Denno

Faculty Scholarship

No abstract provided.