Law Commons^™

Cruelty, Prison Conditions, And The Eighth Amendment, Sharon Dolovich

Georgetown Law Faculty Publications and Other Works

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not …

Incarceration American-Style, Sharon Dolovich

Georgetown Law Faculty Publications and Other Works

In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating—that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of …

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical …

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

All Faculty Scholarship

In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …

Jews In Jail, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Thug Life: Hip Hop’S Curious Relationship With Criminal Justice, André Douglas Pond Cummings

Faculty Scholarship

I argue that hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States. At base, hip hop lyrics and their cultural accoutrements turns U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment. Prison and punishment philosophy in the U.S. is based on clear principles of retribution and incapacitation, where prison time for crime should serve to deter individuals from engaging in criminal behavior. In addition, the stigma that attaches to imprisonment should dissuade criminals from recidivism. Hip hop culture denounces crime and punishment in the …

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

All Faculty Scholarship

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Pollard Languishes, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Managing Performance [In Child Welfare Supervision], Megan E. Paul, Michelle Graef, Erika J. Robinson, Kristin Saathoff

Center on Children, Families, and the Law: Faculty Publications

One of the primary roles of a supervisor is to manage worker performance. Performance management is the "continuous process of identifying, measuring, and developing the performance of individuals and teams and aligning performance with the strategic goals of the organization" (Aguinis, 2007, p. 2). Supervisors must regularly assess current performance levels and take steps to improve performance in a way that is congruent with agency goals. The ultimate goal is to achieve agency objectives through individual and team performance.

To effectively manage performance, supervisors must know what the performance expectations are for workers and clearly communicate these expectations to workers. …

Recruiting And Selecting Child Welfare Staff, Michelle Graef, Megan Paul, Tara L. Myers

Center on Children, Families, and the Law: Faculty Publications

In this chapter, the focus is on recruiting and selecting new staff and on the steps agencies can take to ensure that they are doing the best possible job to attract and hire a high-performing, committed workforce. This chapter reviews a number of strategies for improving recruitment and selection processes and provides case examples from the authors' work with child protection agencies in several states. These projects have been accomplished by a team of researchers at the University of Nebraska-Lincoln's Center on Children, Families, and the Law (CCFL). Some of the techniques described here will be familiar, whereas others are …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Journal Articles

No abstract provided.

A New System Of Preventative Detention - Let's Take A Deep Breath, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Some have argued that the detention center at Guantanamo Bay cannot be closed until the U.S. passes new preventive detention laws that would allow it to detain those who cannot be tried but are considered too dangerous to release. This article rejects these claims, concluding that the existing criminal justice system can adequately deal with those who the U.S. should be seeking to detain. The article also warns of the costs of trying to set up an entirely new system of detention without charge. The article cautions that such a system will negate many of the reputational gains associated with …

Getting Real About Race And Prisoner Rights, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article explores the nexus of two stories central to contemporary American jurisprudence and--for tens of millions of citizens--central to the American experience: the rise of the “carceral state” through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning …

Vagrants In Volvos: Ending Pretextual Traffic Stops And Consent Searches Of Vehicles In Illinois, 40 Loy. U. Chi. L.J. 745 (2009), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

It’S Doom Alone That Counts: Can International Human Rights Law Be An Effective Source Of Rights In Correctional Conditions Litigation?, Michael L. Perlin, Henry A. Dlugacz

Articles & Chapters

Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation ofthe Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas ofprisoners' rights law.

From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate …

Fifty State Survey Of Official Misconduct Statutes, Brenda V. Smith

The Project on Addressing Prison Rape - Surveys

This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This survey is in chart form and compiles statutes that address official misconduct in all fifty states, as well as surrounding territories. This chart includes information on the statutes, relevant definitions, penalties, and administrative procedures.

Legal Responses To Sexual Violence In Custody: State Criminal Laws Prohibiting Staff Sexual Abuse Of Individuals Under Custodial Supervision, Brenda V. Smith, Jaime M. Yarussi

Articles in Law Reviews & Other Academic Journals

This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This publication begins with a brief discussion of staff sexual misconduct, and then examines a variety of definitions of staff sexual misconduct as defined by federal law. Next, the publication explores, in detail, sexual misconduct as defined by state criminal laws in the United States, provides examples of current state criminal laws on staff sexual misconduct and discusses the legal implications of these statutes. Finally, this publication concludes by reviewing the policy issues …

Fifty State Survey Of Vulnerable Persons Statutes, Brenda V. Smith

The Project on Addressing Prison Rape - Surveys

This document provides information regarding enacting state, statute number, statute title, coverage, definitions and notes, penalties, and applicability to youth for criminal laws prohibiting the abuse of individuals by their caregivers.

A Short Overview Of The Statutory Remedies For The Wrongly Convicted: What Works, What Doesn't And Why, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Unjust Selection Of Justice Professionals: Balancing Fairness For Police Officer Applicants And The Potential Citizens They Will Serve, Robert W. Boyle

Master's Theses

This paper examines the effects on the community when its police officers are held to different physical standards based upon their sex. Through a Platonic analysis of the modern day "guardians of the city," it can be seen that the community is deprived of the strongest and best police force when the department compensates individuals based upon a "weakness" that thier class of applicants possesses. This process proves to be unfair to both the applicants and to the citizens they may subsequently serve.

The Death Penalty In Florida, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article summarizes the findings and recommendations of the ABA Death Penalty Moratorium Implementation Project's Florida Assessment Team, which I chaired. Relying on an analysis of caselaw, studies, news reports, and interviews, the article describes significant flaws in Florida's death penalty law and practice in nine areas: the police investigative process; the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; clemency; the system's reaction to the race of the victim; and the treatment of people with mental disability. …

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

Careers In Corrections: Perceptions From The Inside, Kelsey A. Kanoff

Honors Projects

Examines the perceptions of correctional officers on recruitment, retention, and promotion processes within the Rhode island Department of Corrections. Studies the extent to which gender, and to a lesser extent, race, impact officers at all three stages of their careers.

"Who's The Man?": Masculinities Studies, Terry Stops, And Police Training, Frank Rudy Cooper

Scholarly Works

In this article, Professor Frank Rudy Cooper examines how masculinity contests specifically, and masculinities studies generally, affect policing. He reviews the hegemonic masculinities school of thought and identifies the following background principles of the hegemonic pattern of masculinities in the United States: (1) men's concern with the opinions of other men; (2) anxiety over whether one has proved one's manhood; (3) a competitiveness reflected in a need to dominate other men and a general aggressiveness; and (4) a denigration of contrast figures reflected in a repudiation of femininity and homosexuality as well as subordination of racial minorities. Then he identifies …

Never Too Late To Go Home Again, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Where The Home In The Valley Meets The Damp Dirty Prison: A Human Rights Perspective On Therapeutic Jurisprudence And The Role Of Forensic Psychologists In Correctional Settings, Astrid Birgden, Michael L. Perlin

Articles & Chapters

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …

Restoration But Also More Justice, Stephanos Bibas

All Faculty Scholarship

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …

How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, David A. Harris

Articles

In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on …

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …