Law Commons^™

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

All Faculty Scholarship

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

State Prosecutors At The Center Of Mass Imprisonment And Criminal Justice Reform, Nora V. Demleitner

Scholarly Articles

State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative …

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud

The Scholar: St. Mary's Law Review on Race and Social Justice

While Texas has long been recognized as “Tough Texas” when it comes to crime, recent efforts have been made to combat that reputation. Efforts such as offering “good time” credit and more liberal parole standards are used to reduce the Texas prison populations. Although effective in reducing prison populations, do these incentives truly reduce a larger issue of prison overpopulation: recidivism?

In both state and federal prison systems, inmate education is proven to reduce recidivism. Texas’s own, Windham School District, provides a broad spectrum of education to Texas Department of Criminal Justice inmates; from General Education Development (GED) classes to …

Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer

Michigan Law Review

A review of James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America.

Re-Assessing Mass Incarceration In Light Of The Decriminalization Of Marijuana In Maryland, Matthew R. Braun

University of Baltimore Law Forum

No abstract provided.

Stop Asking Which Came First, The Jail Or The Criminal - Start Reinvesting In Justice In Maryland, Bridget Lowrie

University of Baltimore Law Forum

The numerous cries for reform of the United States criminal justice system in recent time are not without merit based on an examination of the prison population. Despite violent crime being at record low rates in the United States, the prison population has expanded tremendously. On the global stage, the United States is the leader in incarceration rates. The United States has more people incarcerated than any other country, including China, Russia, and India. Looking at a local level, Maryland is not immune to this trend. In Maryland, while violent crime is on the decline, the amount of time an …

Proportional Response: The Need For More—And More Standardized—Veterans’ Courts, Claudia Arno

University of Michigan Journal of Law Reform

Over the past two decades, judges and legislators in a number of states have recognized significant shortcomings in the ways traditional systems of criminal corrections address cases involving criminal offenders who are veterans of the U.S. armed services. This recognition has come at a time when policy-makers have similarly recognized that, for certain subsets of criminal offenders, “diversionary” programs may achieve better policy results than will traditional criminal punishment. In accordance with these dual recognitions, some states have implemented systems of veterans’ courts, in which certain offenders, who are also U.S. veterans, are diverted into programs that provide monitoring, training, …

Taser Time: Electroshock Injustice Coming Soon To Athens-Clarke County, Donald E. Wilkes Jr.

Popular Media

On Sunday, Apr. 19, 2015, an article in the daily newspaper in Athens announced that Athens-Clarke County Police have already received a shipment of 145 tasers and will soon begin using them on the citizenry of this county.

Although taser electroshock devices are technically classified as nonlethal weapons, this means only that their purpose is to avoid fatalities, not that they are incapable of resulting in fatalities. Use of a nonlethal weapon may and sometimes does result in death or serious injury. In recent years, at least 600 Americans, perhaps as many as 1,000, have died suddenly, unexpectedly, or shortly …

Sentence Creep: Increasing Penalties In Michigan And The Need For Sentencing Reform, Anne Yantus

University of Michigan Journal of Law Reform

The governor and several legislators have requested review of Michigan’s sentencing practices with an eye toward sentence reform. Michigan leads the country in the average length of prison stay, and by internal comparisons the average minimum sentence has nearly doubled in the last decade. This Article explores cumulative increases to criminal penalties over the last several decades as reflected in amendments to the sentencing guidelines, increased maximum sentences, harsh mandatory minimum terms, increased authority for consecutive sentencing, wide sentencing discretion for habitual and repeat drug offenders, and tough parole practices and policies. The reality for legislators is that it is …

Remedying Wrongful Execution, Meghan J. Ryan

University of Michigan Journal of Law Reform

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state's district courts is in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court's investigation has been interrupted by objections from Texas prosecutors, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and …

The Great Recession And Its Implications For Community Policing, Matthew J. Parlow

Matthew Parlow

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Government Entrepreneurship: How Cop, Direct Supervision, And A Business Plan Helped To Solve Santa Ana's Crime Problems, Paul M. Walters, Russell Davis

Michigan Law Review First Impressions

Much has been written about Community Oriented Policing for police agencies and about the Direct Supervision concept for jail operations. Each strategy is at the cutting edge of its respective discipline. This Commentary describes how the progressive City of Santa Ana implemented both strategies— along with a visionary business plan to operate its jail at minimal cost—to combat crime successfully. The City’s business plan relies on entrepreneurship that is too often lacking in government programs. This approach has led to a number of innovations in law enforcement, corrections, and government service. Pay-to-Stay programs provide yet another example of how Santa …

The Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon

Michigan Law Review First Impressions

The dirty little secret is out: people with more money get a better deal in our criminal justice system. Anyone who has spent more than a nanosecond in this system knows it to be true, yet that does not make it right. It is an abomination to divert our attention to pay-to-stay programs instead of finding the resources to improve our general jail facilities to make them tolerable for every inmate. Don’t get us wrong—if we suffered the misfortune of being arrested, we would dearly love the opportunity to pay for a private jail facility. However, the pay-to-stay initiative is …

Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg

Michigan Law Review First Impressions

The website of the Santa Ana, California-version of Pay-to-Stay uses hotelier-type verbiage in describing features of its alternative jail program. It tells us that the jail “is pleased to host a full range of alternatives to traditional incarceration”; it reassures prospective “clients” seeking flexible work/jail schedules (“Work on Saturday or Sunday? No problem, your weekend days are our weekend days.”); it guarantees “24-hour on-site medical staff”; it accommodates inmates near and far (“We have helped clients with sentences from other counties as well as other states.”); and it generally brags that the jail “is the most modern and comfortable facility …

Jurisdictional Competition In Criminal Justice: How Much Does It Really Happen?, Samuel R. Gross

Articles

It's a familiar image from American fiction: the bad guy ridden out of town on a rail' or beaten up by the sheriff and dumped on the next train out. Where do they go? Banishment is an age-old form of punishment. In America, where an atomized criminal justice system has survived into the twentyfirst century, we can continue to try to dump our criminals on our near neighbors, and-as Doron Teichman points out in his interesting articlethat is not the only way that American states, counties, and cities can try to reduce their own crime rates by exporting crime elsewhere.3 …

The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman

Michigan Law Review

Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …

Neighborhood, Crime, And Incarceration In New York City, Jeffery Fagan, Valerie West, Jan Holland

Faculty Scholarship

Several new studies suggest that social and spatial incarceration of young males has become part of the developmental ecology of adolescence in the nation's poorest neighborhoods. This concentration began in the 1970s, and has grown steadily through the last quarter century.The story of young men such as Cesar in Random Family illustrates the pervasive effects of both direct and vicarious prison experiences for young men and women in poor neighborhoods. Studies of street life such as Random Family, Code of the Streets, and American Project show how these experiences are now internalized in the social and psychological fabric of neighborhood …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman

Publications

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

See Part II at http://scholar.law.colorado.edu/articles/551/.

Police And Thieves, Rosanna Cavallaro

Michigan Law Review

What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades? What explains the acute detachment from the accused that is at the core of this series of books? In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller …

Race, Cops, And Traffic Stops, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

This article discusses the Supreme Court's failure to provide a clear and effective remedy for discriminatory pretextual traffic stops. The first part explores the discretionary nature of pretextual stops and their discriminatory effect on African-Americans and Latinos. Then, the article examines Whren v. United States, a Supreme Court case in which the petitioners claimed that these “pretextual stops” violate the Fourth Amendment to the Constitution and are racially discriminatory. The Supreme Court rejected the claim, upholding the constitutionality of pretextual stops based on probable cause and noting that claims of racial discrimination must be challenged under the Equal Protection Clause. …

Criminal Justice In The Lower Courts: A Study In Continuity, Gerald Caplan

Michigan Law Review

A Review of The Transformation of Criminal Justice: Philadelphia, 1800-1880 by Allen Steinberg

Postscript: Proposals For A Long-Range Program, Jerome Hall

Articles by Maurer Faculty

No abstract provided.