Law Commons^™

Pre-Imprisonment Employment Drops: Another Instance Of The Ashenfelter Dip?, Charles E. Loeffler

Journal of Criminal Law and Criminology

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

The Law Of Abolition, Kevin M. Barry

Journal of Criminal Law and Criminology

Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands.

When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, …

A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier

Journal of Criminal Law and Criminology

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Journal of Criminal Law and Criminology

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

A Culture That Is Hard To Defend: Extralegal Factors In Federal Death Penalty Cases, Jon B. Gould, Kenneth S. Leon

Journal of Criminal Law and Criminology

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory. This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence. Using frequentist and Bayesian methods—supplemented with expert interviews—we empirically …

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …

Let Them Frye: Frye Hearings For Determination Of "Mental Disorders" In The Sexually Violent Persons Act, Hannah Henkel

Journal of Criminal Law and Criminology

Specific laws aimed at the confinement of mentally disabled sexually violent persons have existed for years. Originally, these laws aimed to rehabilitate a person within a mental hospital and help him with his disorders, aiming to help him enter back into society. However, throughout the years, the laws morphed into ways to keep convicted criminals from society after their prison sentence ended for fear of potential future crimes. In Illinois, the courts find a man falls within the sexually violent persons law when he remains too dangerous to be released after his criminal confinement. A person must have a “mental …

Revisiting The Public Safety Exception To Miranda For Suspected Terrorists: Dzhokhar Tsarnaev And The Bombing Of The 2013 Boston Marathon, Hannah Lonky

Journal of Criminal Law and Criminology

This Comment examines the application of the public safety exception to Miranda to cases of domestic terrorism, looking particularly at the case of Dzhokhar Tsarnaev and the 2013 Boston Marathon bombing. By comparing the Department of Justice’s War on Terror policies to the Warren Court’s rationale for Miranda, this Comment argues that courts should require law enforcement officers to have reasonable knowledge of an immediate threat to public safety before they may properly invoke the Quarles public safety exception.

A Means To An Element: The Supreme Court's Modified Categorical Approach After Mathis V. United States, Michael Mcgivney

Journal of Criminal Law and Criminology

No abstract provided.

What Happens After The Right To Counsel Ends? Using Technology To Assist Petitioners In State Post-Conviction Petitions And Federal Habeas Review, Margaret Smilowitz

Journal of Criminal Law and Criminology

No abstract provided.

Examining Jurors: Applying Conversation Analysis To Voir Dire In Capital Cases, A First Look, Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor

Journal of Criminal Law and Criminology

Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document the …

Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp

Journal of Criminal Law and Criminology

This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than other cases. …

The Rhetoric Of Abolition: Continuity And Change In The Struggle Against America's Death Penalty, 1900-2010, Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, Keshav Pant

Journal of Criminal Law and Criminology

This article seeks to understand when, how, and where the framing of arguments against capital punishment has changed. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas. Each is located in a different region of the country, and each has its own distinctive death penalty history. We studied the framing of arguments against the death penalty from 1900 to 2010. Our study suggests that the rhetorical reframing of the campaign against capital punishment that has occurred at the national level has had deep resonance at …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Journal of Criminal Law and Criminology

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

The Exercise Of Power In Prison Organizations And Implications For Legitimacy, John Wooldredge, Benjamin Steiner

Journal of Criminal Law and Criminology

Extrapolating from Bottoms and Tankebe’s framework for a social scientific understanding of “legitimacy,” we argue that differences in how correctional officers exercise “power” over prisoners can potentially impact their rightful claims to legitimate authority. Given the implications of this argument for the “cultivation” of legitimacy (as discussed by Weber), the study described here focused on (a) individual and prison level effects on the degree to which officers generally rely on different power bases when exercising their authority, and (b) whether more or less reliance on different power bases at the facility level impacts prisoners’ general perceptions of officers as legitimate …

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Journal of Criminal Law and Criminology

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty …

Recidivism And Time Served In Prison, Daniel P. Mears, Joshua C. Cochran, William D. Bales, Avinash S. Bhati

Journal of Criminal Law and Criminology

A justification for lengthier stays in prison stems from the belief that spending more time in prison reduces recidivism. Extant studies, however, have provided limited evidence for that belief and, indeed, suggest the effect of time served may be minimal. Few studies have employed rigorous methodological approaches, examined time spans of more than one to two years, or investigated the potential for the relationship between recidivism and time served to be curvilinear. Drawing on prior scholarship, this paper identifies three sets of hypotheses about the functional form of the time served and recidivism relationship. Using generalized propensity score analysis to …

Fulfilling Daubert's Gatekeeping Mandate Through Court-Appointed Experts, Stephanie Domitrovich

Journal of Criminal Law and Criminology

No abstract provided.

Looking Backwards At Old Cases: When Science Moves Forward, Jules Epstein

Journal of Criminal Law and Criminology

Forensic evidence—be it in the form of science-derived analyses such as DNA profiling or drug identification, or in more subjective analyses such as pattern or impression [latent print, handwriting, firearms] examinations—is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in Maryland v. Kulbicki, addresses the inadequacies of the Court’s analysis, and suggests some factors for judges confronted …

Sleuthing Scientific Evidence Information On The Internet, Carol Henderson, Diana Botluk

Journal of Criminal Law and Criminology

No abstract provided.

What Is Wrong With Sex In Authority Relations? A Study In Law And Social Theory, Galia Schneebaum

Journal of Criminal Law and Criminology

Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

Journal of Criminal Law and Criminology

No abstract provided.

Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care, Sarah Halbach

Journal of Criminal Law and Criminology

This Comment looks closely at the reasoning behind two recent federal court opinions granting transgender prisoners access to hormone therapy and sex-reassignment surgery. Although both opinions were decided under the Eighth Amendment’s ban on cruel and unusual punishment, which does not expressly prohibit discrimination based on gender identity, a careful look at the courts’ reasoning suggests that they were influenced by the apparent discrimination against the transgender plaintiffs. This Comment argues that future transgender prisoners may be able to develop an antidiscrimination doctrine within the Eighth Amendment by framing their Eighth Amendment medical claims in terms of discrimination based on …

Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform, Cristina Law

Journal of Criminal Law and Criminology

Prisoners face many barriers when petitioning for federal habeas corpus relief, especially when asserting ineffective assistance of trial counsel claims. The Supreme Court’s decision in Trevino v. Thaler attempted to lower these barriers by carving out a narrow exception to the procedural default rule. Although a step in the right direction, this narrow exception fell short of meaningful habeas corpus reform. This Comment argues that although the Supreme Court’s decision in Trevino appears to guarantee habeas corpus petitioners the ability to raise ineffective assistance of trial counsel claims in federal court, it is unlikely to provide prisoners meaningful opportunities to …

Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin

Journal of Criminal Law and Criminology

Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …

Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control, Joshua D. Freilich, Graeme R. Newman

Journal of Criminal Law and Criminology

This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal …

Examining The Sources Of Correctional Officer Legitimacy, Benjamin Steiner, John Wooldredge

Journal of Criminal Law and Criminology

Correctional officer legitimacy has been linked to prison safety and order, and it may also be relevant for inmate well-being and facilitating behavioral change. Yet few studies have examined the sources of correctional officer legitimacy. Findings from analyses of survey data collected from over 5,500 inmates housed throughout forty-six facilities in Ohio and Kentucky revealed that inmates’ perceptions of the treatment they received during their most recent encounters with correctional officers (procedural justice) impacted the strength of their beliefs regarding the legitimacy of those officers. The analyses also revealed that background factors such as inmates’ age and race were relevant …

Sentencing And Interbranch Dialogue, Eric S. Fish

Journal of Criminal Law and Criminology

American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this …

Maternal And Paternal Imprisonment And Children's Social Exclusion In Young Adulthood, Holly Foster, John Hagan

Journal of Criminal Law and Criminology

The United States has entered its fourth decade of high imprisonment levels. It is now possible to assess the impact of parental imprisonment on children who have completed the transition to adulthood. We elaborate the role of parental incarceration from a life course perspective on intergenerational social exclusion in young adulthood. The National Longitudinal Study of Adolescent Health [Add Health] representatively sampled the historically unique national cohort born in the 1980s, during the onset of mass incarceration. Four waves of the Add Health survey provide a valuable moving window on incarcerated parents and the transitions of their children from adolescence, …

Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die, Meredith Martin Rountree

Journal of Criminal Law and Criminology

In the United States, different people have different rights to die. This Article traces the origins of death-sentenced prisoners’ ability to enlist assistance in dying and compares it to the considerably more circumscribed right held by people with serious illness. It uses empirical research on “volunteers,” death-sentenced prisoners who sought execution, to argue that the legal standard for adjudicating their requests to hasten execution should be changed. Empirical evidence suggests many of the concerns governing the regulation of assisted dying in the medical context are present in the death row case. This Article therefore urges courts to use a balancing …