Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 59

Full-Text Articles in Law

Wage Theft Criminalization, Benjamin Levin Jan 2021

Wage Theft Criminalization, Benjamin Levin

Articles

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes ...


Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus Jun 2020

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper ...


Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr May 2020

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally ...


Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth Jan 2020

Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth

Articles

No abstract provided.


Criminal Law In Crisis, Benjamin Levin Jan 2020

Criminal Law In Crisis, Benjamin Levin

Articles

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in ...


Mens Rea Reform And Its Discontents, Benjamin Levin Jan 2019

Mens Rea Reform And Its Discontents, Benjamin Levin

Articles

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory ...


Opioids And Converging Interests, Mary Crossley Jan 2019

Opioids And Converging Interests, Mary Crossley

Articles

Written as part of Seton Hall Law Review’s Symposium on “Race and the Opioid Crisis: History and Lessons,” this Essay considers whether applying the lens of Professor Derrick Bell’s interest convergence theory to the opioid crisis offers some hope of advancing racial justice. After describing Bell’s interest convergence thesis and identifying racial justice interests that African Americans have related to the opioid crisis, I consider whether these interests might converge with white interests to produce real racial progress. Taken at face value, white politicians’ statements of compassion toward opioid users might signal a public health-oriented approach to ...


Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin Jan 2018

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Articles

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 of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these ...


The Consensus Myth In Criminal Justice Reform, Benjamin Levin Jan 2018

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Articles

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame ...


The Culture Of Misdemeanor Courts, Jessica A. Roth Jan 2018

The Culture Of Misdemeanor Courts, Jessica A. Roth

Articles

The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can ...


The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr May 2017

The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr

Articles

This paper adds to the empirical evidence that criminal records are a barrier to employment. Using data from 2,655 online applications sent on behalf of fictitious male applicants, we show that employers are 60 percent more likely to call applicants that do not have a felony conviction. We further investigate whether this effect varies based on applicant race (black versus white), crime type (drug versus property crime), industry (restaurants versus retail), jurisdiction (New Jersey versus New York City), local crime rate, and local racial composition. Although magnitudes vary somewhat, in every subsample the conviction effect is large, significant, and ...


The Chow: Depictions Of The Criminal Justice System As A Character In Crime Fiction, Marianne Wesson Jan 2017

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

Articles

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 ...


The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber Jan 2016

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Articles

No abstract provided.


Crime Logic, Campus Sexual Assault, And Restorative Justice, Donna Coker Jan 2016

Crime Logic, Campus Sexual Assault, And Restorative Justice, Donna Coker

Articles

No abstract provided.


Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus Jan 2016

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the ...


Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott Apr 2015

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

Articles

Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these process costs ...


Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr Jan 2014

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that ...


Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy Jan 2014

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

Articles

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to ...


The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey Jan 2013

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Articles

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often ...


On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr Jan 2013

On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr

Articles

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams' article, The Impriasoner's Dilemma: A Cost-Benefit Approach to Incarceration,' makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams' piece and discuss the possible case that could be made for incorporating formal ...


Interpersonal Power In The Criminal System, Kimberly A. Thomas Jan 2013

Interpersonal Power In The Criminal System, Kimberly A. Thomas

Articles

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind ...


Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger Jan 2013

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced ...


Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus Jan 2013

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal ...


The Illusory Right To Counsel, Eve Brensike Primus Jan 2011

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the ...


Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus Jan 2010

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the ...


Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien Jan 2010

Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien

Articles

The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors


A Structural Vision Of Habeas Corpus, Eve Brensike Primus Jan 2010

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the ...


Jim Crow Ethics And The Defense Of The Jena Six, Anthony V. Alfieri Jan 2009

Jim Crow Ethics And The Defense Of The Jena Six, Anthony V. Alfieri

Articles

This Article is the second in a three-part series on the 2006 prosecution and defense of the Jena Six in LaSalle Parish, Louisiana. The series, in turn, is part of a larger, ongoing project investigating the role of race, lawyers, and ethics in the American criminal-justice system. The purpose of the project is to understand the race-based, identity-making norms and practices of prosecutors and defenders in order to craft alternative civil rights and criminal-justice strategies in cases of racially-motivated violence. To that end, this Article revisits the prosecution and defense of the Jena Six in the hope of uncovering the ...


Prosecuting The Jena Six, Anthony V. Alfieri Jan 2008

Prosecuting The Jena Six, Anthony V. Alfieri

Articles

No abstract provided.


Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien Jan 2008

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases ...