Law Commons^™

The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities …

The Dark Plea: One Of The Most Coercive Abuses Of Power Permitted In The Criminal Justice System, Michael P. Donnelly

Et Cetera

Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.

This article sets down in writing a speech I …

Women Rebuilding Their Lives Post Incarceration: The Obstacles Of Housing And Employment, Sydney Ward

English Undergraduate Honors Theses

According to a report from The Sentencing Project, "the female incarcerated population stands nearly five times higher than in 1980" and this trend has continued, which means that "at the national level, 47 out of every 100,000 women were in prison in 2020" (“Incarcerated Women and Girls.”). This means that women are leaving prison and beginning their reentry process into society every day, which is much easier said than done. With this reentry process, there are various barriers that each woman must overcome to reestablish their lives. When women are released from incarceration, the first thing they must do is …

“It’S The End Of The World As We Know It” –Redrafting Amendment To Federal Rule Of Criminal Procedure 26 To Allow Remote Testimony, Alisson Sandoval

Touro Law Review

During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.

Principles Of Prosecutor Lenience, Jeffrey Bellin

Faculty Publications

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

[...]

This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. …

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

[...]

This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Faculty Publications

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in …

What Trump's Business Fraud Charges Mean -- A Former Prosecutor Explains The 34 Felony Counts And Obstacles Ahead For Manhattan's Da, Jeffrey Bellin

Popular Media

No abstract provided.

Trump's Indictment Stretches Us Legal System In New Ways -- A Former Prosecutor Explains 4 Key Points To Understand, Jeffrey Bellin

Popular Media

No abstract provided.

Legal Representation For Complainants Of Sexual Violence In The Criminal Justice System: A Proposal To Advance Women's Equality, Karen M. Bellehumeur

Electronic Thesis and Dissertation Repository

Very few survivors of sexual violence choose to engage the Canadian criminal justice system despite the fact that we expect law to be an effective tool to combat sexual violence. Since the vast majority of sexual violence survivors are female, the criminal justice system is failing women. This failure is largely because of the harm it causes by re-victimizing sexual assault complainants. Much of that harm arises from misunderstandings about trauma and from the existence of rape myths and gender stereotypes.. I argue that the criminal justice system’s treatment of female sexual violence complainants violates their section 7 and 15 …

A World Without Prosecutors, Jeffrey Bellin

Faculty Publications

Bennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”

[...]

Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly …

The Imagined Juror: How Hypothetical Juries Influence Federal Prosecutors (Book Review), Jeffrey Bellin

Popular Media

No abstract provided.

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

William & Mary Law Review

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, …

Fundamental Criminal Procedure (2022 Edition), Fredric I. Lederer

Faculty Publications

Fundamental Criminal Procedure explores American criminal procedure in a format ultimately destined for electronic publication. Because many students devote a great deal of their class time to taking notes, often at the expense of creative analysis, the text is intended to supply all of the necessary “black letter law” needed for mastery of the subject. The materials are, however, far more than a “study aid.” They emphasize where appropriate the crucial philosophical and policy questions and issues inherent in the subject. Periodic “Review Questions” require understanding application of academic material in a pragmatic context. “Legal Briefs” require the student to …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Articles

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Mental Health, Substance Abuse And Recidivism: Perceptions Of Key Justice System Stakeholders In Southern California, Tabari Zahir

Electronic Theses, Projects, and Dissertations

Despite the 2011 landmark decision of the United States Supreme Court ordering the California authorities to address prison overcrowding, the Golden State still faces significant challenges dealing with the size of its correctional population. Recidivism plays a preponderant role in slowing down the momentum toward overcoming relatively high rates of incarceration across the state. The purpose of this study was to explore the perceptions of key human services stakeholders about the intersection of three major challenges in the California criminal justice system: mental health, substance use, and recidivism. Embracing a continuum of care approach, this study ultimately attempted to explore …

The “Innocence Penalty”: Is It More Pronounced For Juveniles?, Nilam A. Sanghvi, Elizabeth A. Delosa

Dickinson Law Review (2017-Present)

Despite the presumption of innocence, we know that individuals accused of crimes are punished for maintaining their innocence in ways both tangible and intangible as they make their way through our criminal justice system. For example, even if instructed not to, jurors may infer guilt from a defendant’s failure to testify; defendants who exercise their right to go to trial receive lengthier sentences if convicted than those who plead guilty; and, once convicted, defendants who maintain their innocence are often denied opportunities for parole or clemency. This article explores whether these “innocence penalties” are even greater for children who are …

Racial Bias Still Exists In Criminal Justice System? A Review Of Recent Empirical Research, Yu Du

Touro Law Review

The debate on whether racial bias is still embedded in the criminal justice (CJ) system today has reached its plateau. One recent article in the Washington Post has claimed an overwhelming evidence of racial bias in the CJ system. Whereas some scholars argue that racial disparity is an epitome of real crime rates, others indicate that implicit and/or explicit racial bias against Blacks held by law enforcement agents persists in the system. This review considers both supporting arguments and relevant counterarguments. After evaluating empirical and rigorous research during the past five years, the review maintains that racial bias still exists …

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

Racial Prejudice In The Criminal Justice System, Tori Cooper

Jessie O'Kelly Freshman Essay Award

Racial prejudice against African Americans has been the leading cause of high incarceration rates amongst the African American community. Within the United States, the census reported that African Americans make up about 17.9 percent of the population, with one-third of the people making up the incarcerated population in America. The disparity in those numbers highlights the current situation that is plaguing the nation. Blatant cases of racial profiling that have received media attention are a true testament of the broken law enforcement system from coast to coast. Racial prejudice cases have affected the black American community since the beginning of …

The Criminal Justice System And Latinos In An Emerging Latino Area, Betina Cutaia Wilkinson

Latino Public Policy

The topic of my study is Latinos’ attitudes and experiences with the criminal justice system in an emerging Latino area. There is an extensive amount of research on African Americans’ experiences and views of the criminal justice system yet our knowledge of Latinos’ experiences with the criminal justice system is quite scant. Still, a few studies have provided some foundation for our understanding of this topic. We know that immigrant policing is associated with Latinos’ reduced trust in government agencies and its programs (Cruz Nichols et al. 2018a). Restrictive immigration policies negatively impact Latinos’ physical and mental health (Cruz Nichols …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.