Law Commons^™

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …

What Is Remembered, Alice Ristroph

Michigan Law Review

Review of Sarah A. Seo's Policing the Open Road: How Cars Transformed American Freedom.

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.

The Tyranny Of Small Things, Yxta Maya Murray

Michigan Journal of Race and Law

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey

Michigan Journal of Race and Law

Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him …

Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally, these laws illustrate a fundamental …

Systemic Racial Bias And Rico's Application To Criminal Street And Prison Gangs, Jordan Blair Woods

Michigan Journal of Race and Law

This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the prosecuted White-affiliated gangs fell into three categories: international organized crime groups, outlaw motorcycle gangs, and White supremacist prison gangs. Some scholars and practitioners would explain these findings by contending that most criminal street gangs are comprised of racial minorities. This Article challenges and problematizes this …

Urgent Reform 'In The Name Of Our Children': Revamping The Role Of Disproportionate Minority Contact In Federal Juvenile Justice Legislation, Atasi Satpathy

Michigan Journal of Race and Law

Disproportionate minority contact ("DMC") has plagued the United States juvenile justice system for decades, but federal legislation has lacked the clarity and guidance to battle this affliction. A strong partnership must exist between state and federal entities in order to directly target DMC and thereby decrease the appallingly disproportionate number of minority children who come into contact with the juvenile justice system. This Note discusses the problem of DMC, identifies state and private efforts to combat the crisis, and indicates deficiencies in the Juvenile Justice and Delinquency Prevention Act as well as its reauthorization bill, S. 678. The Note urges …

Choosing Those Who Will Die: The Effect Of Race, Gender, And Law In Prosecutorial Decision To Seek The Death Penalty In Durham County, North Carolina, Isaac Unah

Michigan Journal of Race and Law

District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in …

Why The County Jail Is Often A Better Choice, Shawn Chapman Holley

Michigan Law Review First Impressions

I have been a criminal defense lawyer in Los Angeles for almost twenty years. I began my career in the Los Angeles County Public Defender’s Office, representing defendants who were poor and often homeless. For the past twelve years, I have been in private practice, representing defendants who are wealthy and often famous. Having represented criminal defendants coming from such varied economic circumstances, I have witnessed firsthand the criminal justice system’s disparate treatment of those with money and those without. Pay-to-stay jails are yet another example of that disparity. Yet I believe that those without the money to pay for …

Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford

Michigan Journal of Race and Law

This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth …

On Justitia, Race, Gender, And Blindness, I. Bennett Capers

Michigan Journal of Race and Law

This Essay focuses on Justitia's more problematic attributes. Like Justitia's blindfold, which has been described as "the most enigmatic" of her traits. Is the blindfold merely emblematic of Justitia's purported impartiality, her claim to algorithmic justice? As law professor Costas Douzinas and art historian Lynda Nead have asked, does the blindfold enable Justitia "to avoid the temptation to see the face that comes to the law and put the unique characteristics of the concrete person before the abstract logic of the institution"? Or does the blindfold signify something more, a second sight of sorts? Maybe that Justitia, unable to see, …

Ghosts Of Alabama: The Prosecution Of Bobby Frank Cherry For The Bombing Of The Sixteenth Street Baptist Church, Donald Q. Cochran

Michigan Journal of Race and Law

Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

Michigan Journal of Race and Law

This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, …

Breaking The Camel's Back: A Consideration Of Mitigatory Criminal Defenses And Racism-Related Mental Illness, Camille A. Nelson

Michigan Journal of Race and Law

This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent …

The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu

Michigan Journal of Race and Law

This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.

Cracking The Code: "De-Coding" Colorblind Slurs During The Congressional Crack Cocaine Debates, Richard Dvorak

Michigan Journal of Race and Law

This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory …

The Interplay Of Race And False Claims Of Jury Nullification, Nancy S. Marder

University of Michigan Journal of Law Reform

After the verdicts in the OJ Simpson and Stacey Koon/Laurence Powell cases, many in the press explained the juries' acquittals as instances of jury nullification. However these were unlikely to have been instances of nullification, particularly because the jurors explained that their verdicts were based on reasonable doubt. One motivation for these false claims of jury nullification was the homogeneity of the juries-a largely African-American jury in the case of Simpson and a largely white jury in the case of Koon/Powell. Nullification became the term by which press and public attempted to discredit verdicts rendered by juries they distrusted. A …

The Color Line Of Punishment, Jerome H. Skolnick

Michigan Law Review

If "the color line," (in W.E.B. Du Bois's 1903 phrase and prophecy) was to be the twentieth century's greatest challenge for the domestic life and public policy of the United States, the law has had much to do with drawing its shape. No surprise, this. By now, legal theorists accept that law does not advance in preordained fashion, immune from the sway of political interest, belief systems and social structure. Still, it is hard to exaggerate how powerfully the law has shaped the life chances of Americans of African heritage, for good or ill, and in ways that we scarcely …

Policing Hatred: Police Bias Units And The Construction Of Hate Crime, Jeannine Bell

Michigan Journal of Race and Law

Much of the scholarly debate about hate crime laws focuses on a discussion of their constitutionality under the First Amendment. Part of a larger empirical study of police methods of investigating hate crimes, this Note attempts to shift thinking in this area beyond the existing debate over the constitutionality of hate crime legislation to a discussion of how low-level criminal justice personnel, such as the police, enforce hate crime laws. This Note argues that, since hate crimes are an area in which police have great discretion in enforcing the law, their understanding of the First Amendment and how it relates …

The Future Of The Post-Batson Peremptory Challenge: Voir Dire By Questionnaire And The "Blind" Peremptory, Jean Montoya

University of Michigan Journal of Law Reform

This Article examines the peremptory challenge as modified by Batson and its progeny. The discussion is based in part on a survey of trial lawyers, asking them about their impressions of the peremptory challenge, Batson, and jury selection generally. The Article concludes that neither the peremptory challenge nor Batson achieve their full potential. Primarily because of time and other constraints on voir dire, the peremptory challenge falls short as a tool in shaping fair and impartial juries. While Batson may prevent some unlawful discrimination in jury selection, Batson falls short as a tool in identifying unlawful discrimination once it …

The O.J. Simpson Verdict: A Lesson In Black And White, Christo Lassiter

Michigan Journal of Race and Law

This article is an attempt to analyze the O.J. Simpson verdict and the press coverage of it, to suggest ways not only of improving criminal justice in a diverse community, but also of improving press coverage of criminal justice in a diverse community. Part Two of this essay is subdivided into two sections. The first section surveys the op-ed pages of major newspapers to evaluate the analysis of, and the commentary on, the O.J. Simpson verdict. The second section deconstructs the press' spin on the verdict. Part Three of this article discusses the role of a jury and proof beyond …

The Social Construction Of Identity In Criminal Cases: Cinema Verité And The Pedagogy Of Vincent Chin, Paula C. Johnson

Michigan Journal of Race and Law

This article will discuss the use of the film, Who Killed Vincent Chin?, as a method: (1) to analyze the relationship of social constructions of identity, particularly race, on the rules and discretionary application of criminal jurisprudence; (2) to provide an interactive pedagogical tool for law teachers, especially criminal law teachers, to examine the social contexts of criminal jurisprudence from multiple perspectives; and (3) to examine the ability of criminal law doctrine to address issues of race.

True Lies: The Role Of Pretext Evidence Under Batson V. Kentucky In The Wake Of St. Mary's Honor Center V. Hicks, David A. Sutphen

Michigan Law Review

In the process of determining whether a peremptory strike is valid, lower courts rely on the TI.tie VII burden-shifting framework originally laid out by the Supreme Court in McDonnell Douglas Corp. v. Green As a result, the order and presentation of proof in Batson cases deliberately parallels the order and presentation of proof in TI.tie VII intentional discrimination suits. In light of this similarity, the Supreme Court's recent TI.tie VII ruling in St. Mary's Honor Center v. Hicks - that proof of pretext under the McDonnell Douglas framework is not the legal equivalent to proof of intentional discrimination - raises …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

Postconviction Review Of Jury Discrimination: Measuring The Effects Of Juror Race On Jury Decisions, Nancy J. King

Michigan Law Review

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the …

Capital Punishment's Future, Welsh S. White

Michigan Law Review

A Review of Capital Punishment in America by Raymond Paternoster

Prostitution: Where Racism & Sexism Intersect, Vednita Nelson

Michigan Journal of Gender & Law

Black women find themselves in a unique and extremely difficult position in our society. They are forced to deal with the oppression that arises from being Black in a white-supremacist culture and the oppression that arises from being female in a male-supremacist culture. In order to examine the experience of being Black and female, this paper attempts to describe that very difficult, tight space where Black women attempt to survive-that space where racism and sexism intersect.

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …