Law Commons^™

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

The Trouble With Time Served, Kimberly Ferzan

All Faculty Scholarship

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

How Do Prosecutors "Send A Message"?, Steven Arrigg Koh

Faculty Scholarship

The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.

Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …

Martyrdom And Criminal Defense, Abbe Smith

Georgetown Law Faculty Publications and Other Works

According to research on the emotional well-being of lawyers, public defenders may be among the happiest. This comports with my own anecdotal experience as a teacher and mentor of law students and post-graduate fellows interested in criminal defense, many of whom are now career defenders. They may be deeply frustrated by the system in which they work, but they are happy to do what they can to make a difference for their clients. They also adore their defender colleagues. My former students and fellows in large law firms don’t seem quite as happy.

Notwithstanding the data, there seems to be …

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

All Faculty Scholarship

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

All Faculty Scholarship

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of …

Taking Aim At Pointing Guns? Start With Citizen’S Arrest, Not Stand Your Ground: A Reply To Joseph Blocher, Samuel W. Buell, Jacob D. Charles, And Darrell A.H. Miller, Pointing Guns, 99 Texas L. Rev. 1173 (2021), Kimberly Kessler Ferzan

All Faculty Scholarship

No abstract provided.

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Articles in Law Reviews & Other Academic Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

All Faculty Scholarship

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Publications

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a …

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a way …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

The Chow: Depictions Of The Criminal Justice System As A Character In Crime Fiction, Marianne Wesson

Publications

Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. …

Deterring Torture: The Preventive Power Of Criminal Law And Its Promise For Inhibiting State Abuses, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

The use of torture in the War on Terror reinvigorated a longstanding debate about how to prevent such human rights violations, and whether they should be criminalized. Using US history as a case study, this article argues that the criminal sanction is likely to be more successful in preventing such abuses than many other often suggested methods. Analyzing thousands of pages of released government documents as an archive leads to the counterintuitive finding that torturers were often deterred, at least momentarily, by fear of criminal liability, and would have been successfully deterred if not for the lack of prior prosecutions.

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …