Law Commons^™

Historicizing The War(S) On Drugs Across National (And Disciplanary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

Penile Polygraphy: The Admissibility Of Penile-Plethysmograph Results At Sentencing In Tennessee, Steven Poland

Vanderbilt Law Review

State judges in Tennessee currently consider the results of penile plethysmograph ("PPG") evaluations when sentencing convicted sex offenders. These highly intrusive physical tests purport to identify whether an offender's arousal is considered "deviant" by measuring the change in penis size after viewing various stimuli. Because the results are usually buried in psychosexual evaluations that are part of general presentence assessments of recidivism risk, PPG evaluations suffer from a lack of standardization and little attention under the rules of evidence. Interestingly, PPG testing is similar to polygraphy in a number of ways, although studies have shown that PPG results are more …

Principles Of Risk Assessment: Sentencing And Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making. To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs). RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged. But RAIs bring with them their own set of controversies. In recognition of these concerns, this brief paper proposes three principles — …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Vanderbilt Law Review

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this Article exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, "NCSC Study"). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.

Once A Criminal? Regulating The Use Of Prior Convictions In Sentencing, Nancy J. King

Vanderbilt Law School Faculty Publications

On November 18, 2013, Nancy J. King, the Lee S. and Charles A. Speir Professor at Vanderbilt Law School, delivered Marquette Law School’s annual George and Margaret Barrock Lecture in Criminal Law. This is an abridgment of that lecture. A longer, essay version appears in the spring 2014 issue of the Marquette Law Review.

Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein

Vanderbilt Law School Faculty Publications

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call empirical desert. The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …

Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King

Vanderbilt Law School Faculty Publications

Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide …

Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman, Iii

Vanderbilt Law Review

The primary determinant of sentence length for federal economic criminals is the amount of "loss" resulting from an offender's conduct.' The idea of basing sentences for economic crimes primarily on "loss" has become the source of ongoing, complex, and proliferating disputes about what the term "loss" really means and how it should be interpreted in particular cases. The "loss" calculation is one of the most frequently litigated issues in federal sentencing law. There are at present splits of opinion between the federal circuits on at least eleven analytically distinct issues concerning the meaning and application of the "loss" concept. Even …

The Age Of Criminal Responsibility In An Era Of Violence: Has Great Britain Set A New International Standard?, Stephanie J. Millet

Vanderbilt Journal of Transnational Law

With the alarming rise of juvenile crime and violence during the past decade, policymakers across the international community have struggled to develop effective juvenile criminal justice systems apart from the existing systems tailored to adults. The wide variations in methods and philosophies utilized in different states indicate that there is no consensus on the proper treatment of young offenders. Using the recent Bulger case as a focus, this Note examines two competing paradigms of juvenile justice found within the British juvenile justice system, with particular emphasis on the age of criminal responsibility. After discussing recent developments in Great Britain's juvenile …

Appellate Review Of Legal But Excessive Sentences: A Comparative Study, Gerhard O.W. Mueller, Fre Le Poole

Vanderbilt Law Review

Classical penology was conceived in France in the eighteenth century, and then eclipsed all over the world in the nineteenth, when Lombroso conjured up the picture of the born criminal. It was finally laid to rest in the United States in the twentieth century. Its basic tenet had been simple enough: the legislature in its infinite wisdom would seek and find the appropriate punishment for every crime.This can be accomplished if a crime is defined narrowly enough, perhaps by the creation of subcategories of that crime, so as to encompass all potential perpetrators who will each incur the same amount …