Law Commons^™

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

No abstract provided.

End Natural Life Sentences For Juveniles, Jeffrey A. Fagan

Faculty Scholarship

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper’s maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far …

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of broken windows policing in 1994 – nicely documented in this issue in Andrew Golub, Bruce Johnson, and Eloise Dunlap's article (2007) – is almost enough to make an outside observer ask: Who thought of this idea in the first place? And what were they smoking?

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, …

Institutional Competence And Organizational Prosecutions, Daniel C. Richman

Faculty Scholarship

The business pages regularly provide graphic stories about corporate deferred prosecution agreements (“DPAs”). And commentators regularly fulminate about this alleged abuse of government power, quite confident (or w illfully blind to the fact) that the removal of this non-nuclear option from the prosecutorial arsenal would substantially lessen the ability of prosecutors to obtain cooperation from firms and their employees. Yet this emerging practice has received all too little scholarly attention, and Professor Brandon Garrett has made an important contribution by carefully examining the available facts and creatively drawing on the structure reform literature to highlight questions it raises about legitimacy …

Judging Untried Cases, Daniel C. Richman

Faculty Scholarship

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more.

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Social Contagion Of Violence, Jeffrey A. Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

In this chapter, we assess whether the roller-coaster pattern of homicides in New York City beginning in 1985 fits a contagion model and identify mechanisms of social contagion that predict its spread across social and physical space. This framework for interpreting the homicide trends as an epidemic includes two perspectives. First, the sharp rise and fall are indicative of a nonlinear pattern in which the phenomenon spreads at a rate far beyond what would be predicted by exposure to some external factor and declines in a similar pattern in which the reduction from year to year exceeds what might be …