Law Commons^™

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment Of The Reasonableness Requirement For Fourth Amendment Seizures, Steven P. Grossman

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Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted. In its recent decision in Navarette v. California, the Court largely …

Public Wrongs And Public Reason, Chad Flanders

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The distinction between crimes that involve wrongs in themselves and crimes that are wrong because the law makes them so has long puzzled theorists. This essay argues that the distinction, while getting at something real, is based on a mistake. That mistake is made both by those who see moral wrongness as a necessary condition for criminality and by those who believe merely making something illegal is sufficient to make it criminal. Neither is correct. Rather, what makes something a criminal wrong is that it involves a violation of a law that has been justified in terms of “public reason.”

Time, Death, And Retribution, Chad Flanders

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The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree …

Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders

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There is evidence everywhere that our criminal justice system is undergoing a crisis of practice. Increased police violence and the concomitant distrust of police in many communities, fear of aggressive enforcement tactics more generally, worries about widespread governmental surveillance and, above all, a concern with overcriminalization and mass incarceration-these are the dreary and familiar stuff of daily headlines. But, this crisis of practice in tum reflects a deeper crisis of how we theorize about criminal law. We lack, for the most part, any worked-out theory of what the policing and processing of crime should look like. Nor do we have …

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

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We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …