Law Commons^™

Black Innocence And The White Jury, Sheri Johnson

Sheri Lynn Johnson

Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that …

Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb

Sherry Colb

No abstract provided.

The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long

University of Massachusetts Law Review

Pretrial diversion removes offenders with a low-risk of reoffending from the penal system and instead sends them to supervised treatment programs. The result is lower cost to the state and a second chance for those who successfully complete the program. Typically, violent crimes, such as murder and attempted murder, are exempt from pretrial diversion. Notably, sex related crimes are also ineligible in all jurisdictions. By excluding all sex-related crimes from pretrial diversion, possession of child pornography is adjudicated by the courts. As a result, young, first-time offenders who may be candidates for treatment are bundled with physical offenders, members of …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring …

Racial Disparity In Federal Criminal Sentences, M. Marit Rehavi, Sonja B. Starr

Articles

Using rich data linking federal cases from arrest through to sentencing, we find that initial case and defendant characteristics, including arrest offense and criminal history, can explain most of the large raw racial disparity in federal sentences, but significant gaps remain. Across the distribution, blacks receive sentences that are almost 10 percent longer than those of comparable whites arrested for the same crimes. Most of this disparity can be explained by prosecutors’ initial charging decisions, particularly the filing of charges carrying mandatory minimum sentences. Ceteris paribus, the odds of black arrestees facing such a charge are 1.75 times higher than …

Supreme Court, Queens County, People V. Michaelides, Christin Harris

Touro Law Review

No abstract provided.

Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston

E. Lea Johnston

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This Article …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

E. Lea Johnston

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

E. Lea Johnston

At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners. This Article builds a case for expanding judges’ sentencing power by …

Miller V. Alabama: Something Unconsitutional Now Was Equally Unconstitutional Then, W. Patrick Conlon

University of Michigan Journal of Law Reform Caveat

In June 2012, the United States Supreme Court found mandatory life-without-parole sentences against juvenile offenders unconstitutional in Miller v. Alabama. The Court determined that because children possess “immaturity, impetuosity, and [fail] to appreciate risks and consequences,” they are fundamentally different than adults. Although Miller invalidated every juvenile mandatory life-without-parole (JMLWOP) statute across the United States, there is no clear indication regarding whether Miller retroactively applies to juveniles sentenced to mandatory life-without-parole before the Court’s ruling. As a result, states are split on whether to apply Miller retroactively. Fifteen states have yet to decide whether Miller applies retroactively, while several other …

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp

Dissertations, Theses, and Capstone Projects

Under the common law, burglary is defined as a crime committed against the property of another, and is listed as a property offense for purposes of statistical description by the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). However, burglary is prosecuted and sentenced as a violent crime under habitual offender laws at the federal level, and can be regarded as violent in state law, depending on varied circumstances. Using a mixed methods approach, the current study compared state and federal burglary and habitual offender statutes to an empirical description of the offense. First, a comprehensive content …

Good Conduct Time For Prisoners: Why (And How) Wisconsin Should Provide Credits Toward Early Release, Michael O'Hear

Marquette Law Review

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and …

A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer

Michigan Law Review

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

Catholic University Law Review

No abstract provided.

Mental Health, Psychology And The Law Symposium: Introduction, Sean O'Brien

Faculty Works

The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Distinguishing Between Procedural And Substantive Rules For Purposes Of Retroactivity On Collateral Review, Ryan C. Grover

South Carolina Law Review

No abstract provided.

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.

Sentencing Inequality Versus Sentencing Injustice, Melanie Wilson

Scholarly Works

No abstract provided.

The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric

San Diego Law Review

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …

Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein

Touro Law Review

No abstract provided.

Flawed Coalitions And The Politics Of Crime, David Jaros

All Faculty Scholarship

Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of federal sentencing practice and usher in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative sentencing reformers. The guideline regime established by the Sentencing Reform Act ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s former liberal supporters.

Researchers have shown that a particular cognitive bias — cultural cognition — can explain why intense partisan …

Sentencing The Why Of White Collar Crime, Todd Haugh

Fordham Law Review

“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider-trading defendant of the past thirty years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a lenient sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is …

How Long Is Too Long?: Conflicting State Responses To De Facto Life Without Parole Sentences After Graham V. Florida And Miller V. Alabama, Kelly Scavone

Fordham Law Review

A juvenile offender waits for sentencing while a court calculates his life expectancy and determines the point at which his sentence effectively becomes his entire life. This is the scenario posed by recent U.S. Supreme Court decisions that have struck down life without parole (LWOP) sentences for most juvenile offenders but have left open the possibility of lengthy term-of-years sentences. Consecutive term-of-years sentences may leave many juvenile offenders in prison for the majority of their lives despite the holdings in Miller v. Alabama and Graham v. Florida that juveniles are different and more capable of reform than most adult offenders. …

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 …

Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders

University of Michigan Journal of Law Reform

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …

What Was He Thinking? Mens Rea’S Deterrent Effect On Machinegun Possession Under 18 U.S.C. § 924 (C), Stephanie Power

Catholic University Law Review

No abstract provided.

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

UF Law Faculty Publications

At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners.

This Article builds a case for expanding judges’ sentencing power by …

The Unreviewable Irredeemable Child: Why The District Of Columbia Needs Reverse Waiver, Jamie Stevens

University of the District of Columbia Law Review

In 2005 the U.S. Department of Justice estimated that adult criminal courts prosecuted 23,000 cases involving defendants under the age of eighteen nationwide. 2 This means that those defendants faced conviction and sentencing in adult courts. Transfer of those under eighteen into adult criminal court has become the states' first line of defense in the fight against youth crime. However, recent Supreme Court decisions have cast doubt on the wisdom, and even the constitutionality of that approach. Roper v. Simmons held that the Eighth Amendment prohibits the death penalty for anyone under eighteen years of age. 3 Graham v. Florida …

At Issue: Should Mandatory Sentences Be Abolished?, Steven L. Chanenson, Douglas A. Berman

Steven L. Chanenson