Law Commons^™

The New Penal Bureaucrats, Shaun Ossei-Owusu

All Faculty Scholarship

he protests of 2020 have jump-started conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and re-imagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful dissent have forced the public to reckon with a penal state whose brutality was comfortably tolerated. Scholars are publishing op-eds, policy proposals, and articles with rapidity, pointing to different factors and actors that produce the need for reform. However, one input has gone …

Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz

All Faculty Scholarship

Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.

This Essay calls for a change: expand the use of a special findings verdict, the general …

Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli

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Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under …

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …