Law Commons^™

Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz

Faculty Publications

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off …

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Faculty Publications

No abstract provided.

The Changing Role Of The American Prosecutor, Jeffrey Bellin

Faculty Publications

No abstract provided.

Theories Of Prosecution, Jeffrey Bellin

Faculty Publications

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Faculty Publications

It seemed so clear a half-century ago. After years of frustration reviewing the voluntariness of confessions on a case-by-case basis, a Supreme Court majority in Miranda v. Arizona held that incriminating statements resulting from interrogation while in custody would not be admissible at trial to prove guilt unless warnings were given to advise a suspect of rights of silence and an attorney. It is disappointing to report that if anything has been established over the past 50 years, it is that this mandate isn't clear at all. It turns out that police officers do not necessarily give exactly the warnings …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Convictions As Guilt, Anna Roberts

Faculty Publications

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …

Defending Progressive Prosecution: A Review Of Charged By Emily Bazelon, Jeffrey Bellin

Faculty Publications

"Progressive prosecutors" are taking over District Attorney's Offices across the nation with a mandate to reform the criminal Justice system from the inside. Emily Bazelon's new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal Justice.

This Essay highlights the importance of Charged to modern criminal justice debates and leverages its concrete framing to offer a generally applicable theory of prosecutor-driven criminal justice reform. The theory seeks to reconcile reformers' newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous …

Categorical Nonuniformity, Sheldon Evans

Faculty Publications

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …