Law Commons^™

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Law Enforcement Organization Relationships With Prosecutors, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s o􀁽ces must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible. This chapter explores such organizational interactions and their value.

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

The Handmaid Of Justice: Power And Procedure In The Inferior Courts, Kellen R. Funk

Faculty Scholarship

Summing up the history of procedure from the codification movement of the nineteenth century to the Federal Rules practice of today, Robert Bone observed, “Each generation of procedure reformers, it seems, diagnoses the malady and proposes a cure only to have the succeeding generation’s diagnosis treat the cure as a cause of the malady.” While playfully highlighting the contingencies and unexpected consequences of procedural history, Professor Bone was not advocating a cyclical view of history, in which “cost and delay” continually recur as the bugaboos of procedural reformers who can’t quite figure out how to solve the problem. Instead, Bone …

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Joshua Gupta-Kagan

Faculty Scholarship

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults …

Leading With Conviction: The Transformative Role Of Formerly Incarcerated Leaders In Reducing Mass Incarceration, Susan Sturm, Haran Tae

Faculty Scholarship

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months. These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities. Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus …

He Jiahong, Back From The Dead: Wrongful Convictions And Criminal Justice In China, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

1In 1987, Teng Xingshan was sentenced to death for raping a woman and dismembering her body; wrongfully convicted, he was executed in 1989 – but in 1992 the “victim” returned home, and Teng was exonerated in 2005. His case is only one among numerous other tragic wrongful convictions discussed in Back From the Dead: Wrongful Convictions and Criminal Justice in China, by Professor He Jiahong (Renmin University Law School, Beijing). This book, the product of ten years of research, is a scholarly analysis of wrongful convictions that demonstrates deep system-wide flaws in China’s criminal justice system.

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Recorded encounters between women of color and police officers have been invaluable in bringing the reality of these interactions into the living rooms of otherwise unknowing Americans. The recordings are instrumental pieces of documentation and evidence, with the power to impact verdicts and galvanize the domestic struggle for human rights outside of the courtroom. They also are fraught with ethical issues that must be addressed by attorneys and activists hoping they effect change. Complexities such as implicit biases, editing and sourcing of videos, anonymity for those attacked and bystanders, and vicarious trauma on affected communities complicate use of violent police …

Human Rights In The United States: Primer On Recommendations From The Inter-American Human Rights Commission & The United Nations, Human Rights Institute

Human Rights Institute

Over the past decade, U.S. social justice advocates have increasingly recognized that international and regional human rights mechanisms are important avenues for seeking human rights accountability. A broad and diverse range of advocates have mobilized, in particular, around United Nations human rights reviews, including treaty compliance reviews, Special Rapporteur visits to the United States, and the U.N. Human Rights Council Universal Periodic Review process, increasing visibility of numerous domestic human rights concerns.

A smaller number of advocates and social justice groups have engaged with the Americas’ regional human rights system, the Inter-American Human Rights System, which offers additional and complementary …

Profile In Public Integrity: Cyrus Vance, Jr., Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Cyrus R. Vance, Jr., was first inaugurated as the District Attorney of New York County on January 1, 2010. Over the following four years, Mr. Vance enhanced the Manhattan District Attorney’s Office as a national leader in criminal justice by expanding the offices expertise on an array of 21st century crimes, including identity theft, cybercrime, white-collar fraud, hate crimes, terrorism, domestic violence, human trafficking, and violent and gang-related crimes.

Upon taking office, Mr. Vance modernized the Manhattan District Attorney’s Office by reorganizing its resources and creating new specialized bureaus and units, including the Cybercrime and Identity Theft Bureau, Major Economic …

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

In 2014, many states revisited disproportionately high sentencing schemes for low-level property offenses. Voters in states across the country rallied in favor of reductions in penalties for low-level, nonviolent property offenses, such as theft, check fraud, and larceny. Bipartisan efforts to ease the financial burden of incarceration have lead to criminal justice reforms in states like California, Oregon, and Mississippi. Advocates for women in the criminal justice system have embarked on campaigns to frame reforms as not just a cost-cutting measure, but also as a moral imperative.

For many women, primarily women with little money, relatively low-value property offense convictions …

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

Honoring And Celebrating Myrna Raeder, Brett Dignam

Faculty Scholarship

It is a great privilege to be honoring Myrna Raeder and to celebrate her impressive career, scholarship and personhood. How appropriate to bring together scholars and advocates who share and will carry on her passions. Thank you everyone at Southwestern Law School who worked so hard to imagine and realize this symposium, for gathering us together, and for giving us the opportunity to reflect on the many gifts and fierce challenges Myrna gave to each of us. There is no finer tribute we can give than to carry on her work – the development of ideas and the encouragement of …

Abuse And Potential Misuse Of Resources In U.S. Terrorism Prosecutions, Human Rights Institute

Human Rights Institute

New York, July 21, 2014 – Prosecutions of American Muslims for terrorism offenses are rife with abuse, the Columbia Human Rights Institute says in a new report released today and produced jointly with Human Rights Watch. The report, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions, examines 27 federal terrorism cases, some involving aggressive sting operations and others amounting to overbroad prosecutions for material support of terrorism. It also documents the significant human cost of solitary confinement and other restrictive conditions of confinement in these cases.

Challenging Juvenile Life Without Parole: How Has Human Rights Made A Difference?, Human Rights Institute

Human Rights Institute

Human rights standards and strategies play an important role in social justice legal advocacy in the United States. Human rights help frame new arguments, offer new venues for challenging existing policies and practices, provide opportunities for coalition-building, and afford new means to bring attention to rights violations. One example of human rights strategies at work in the U.S. is found in advocates’ efforts to end a practice unique to the United States: sentencing juveniles to life in prison without the possibility of parole.

Our Fair City: A Comprehensive Blueprint For Gender And Sexual Justice In New York City, Cindy Gao, Katherine M. Franke

Faculty Scholarship

Columbia Law School’s Center for Gender & Sexuality Law offers this report to aid the de Blasio administration in evaluating the steps it can and should take to eliminate all forms of gender and sexual discrimination, and to assure gender and sexual justice in City policy and programs. After consultation with numerous groups advocating for gender and sexual justice across New York City, the Center for Gender & Sexuality Law at Columbia Law School has synthesized in this report a set of key recommendations to the de Blasio administration, all designed to eliminate a wide range of disadvantages, invisibility, violence, …

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Frye And Lafler: No Big Deal, Gerard E. Lynch

Faculty Scholarship

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …

Building Pathways Of Possibility From Criminal Justice To College: College Initiative As A Catalyst Linking Individual And Systemic Change, Susan P. Sturm, Kate Skolnick, Tina Wu

Faculty Scholarship

Across the United States, communities, especially marginalized and low income communities, face challenges resulting from the “school-to-prison pipeline”—a continuum of conditions increasing the probability that people from such marginalized communities, particularly black men, will find themselves in prison rather than college.1 Dismantling this pipeline has become a significant national focus of advocates and policy makers. In New York City, a network has emerged in the last ten years to focus on building a new pipeline from criminal justice to college. This network focuses on rebuilding the lives of the over 70 thousand people who have fallen into the school-to-prison pipeline. …

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are …

Are We Over-Lawyering International Affairs, Philip C. Bobbitt, John D. Hutson, John C. Yoo, Philip D. Zelikow, Edwin D. Williamson

Faculty Scholarship

This panel will discuss the role of lawyers — particularly government lawyers — in addressing questions of legal policy. We will discuss fundamental questions such as: Should lawyers decide legal policy? Or, is that best left to the policymakers? Should lawyers give advice as to legal policy, or should they stick to providing answers as to what the law is? How should lawyers respond to what a policymaker thinks is the legal question, but is really a question of legal policy? If lawyers find the law vague or lacking, should they fill in the gaps, advising as to what the …