Law Commons^™

Citizens, Suspects, And Enemies: Examining Police Militarization, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to …

Defending Those People, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Many practitioners and scholars have written perceptively about the motivations of criminal defenders. Some have written eloquently. I have my own body of work on this and related questions.

This essay is about why the author has devoted her professional career--her life--to defending people most of society would just as soon banish and forget. After nearly thirty years of criminal law practice, her reasons are such a part of her that they are nearly inarticulable. The author is a criminal defender in her soul. She also has been teaching and writing about criminal defense for almost as long as she …

Are Prosecutors Born Or Made?, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In more than thirty years of criminal law practice--from public defender in Philadelphia to professor running a criminal law clinic in New York, Boston, and DC--the author has had countless encounters with prosecutors and countless conversations. Early in her career, the encounters and conversations were noteworthy--something to rail about back at the office, or to "dine out on" with friends. Soon enough they became commonplace, not even worthy of mention, just the way things were. But the author felt it important to pick a few examples and talk about them.

In Praise Of The Guilty Project: A Criminal Defense Lawyer's Growing Anxiety About Innocence Projects, Abbe Smith

Georgetown Law Faculty Publications and Other Works

There is nothing more compelling than a story about an innocent person wrongly convicted and ultimately vindicated. An ordinary citizen is caught up in the criminal justice system through circumstances beyond his or her control, spends many years in prison, and then one day, with the assistance of a dedicated lawyer, is freed.

Often, when DNA is behind a vindication, not only is the innocent person exonerated but the true perpetrator is identified. This is a significant achievement even though it can also lead apologists for the system—even police and prosecutors implicated in the wrongful conviction—to proudly declare that the …

Exporting Harshness: How The War On Crime Helped Make The War On Terror Possible, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition. It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …

The Burdens Of Representing The Accused In An Age Of Harsh Punishment, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The crimes are not any worse than they used to be. They run, as crimes do, from the banal to the barbarous. But punishment seems to have taken on a life of its own.

There are people serving more than twenty years for nonviolent drug offenses. There are people serving more than thirty years for car theft, burglary, and unarmed robbery--crimes for which a harsh sentence used to be ten years. One Oklahoma woman is serving a thirty-five year sentence for "till-tapping"--stealing money out of cash registers--when she was in the throes of a heroin addiction. It is impossible to …

As Freedom Advances: The Paradox Of Severity In American Criminal Justice, David Cole

Georgetown Law Faculty Publications and Other Works

According to the Enlightenment philosopher Montesquieu, "as freedom advances, the severity of the penal law decreases."' Montesquieu's notion is in the United States Constitution's Eighth Amendment, a provision that reflects a Montesquieuan faith that punishments acceptable today will become cruel and unusual tomorrow. Yet the United States in the year 2000 presents a serious challenge to Montesquieu's notion of the progress of freedom. The United States is simultaneously a leader of the "free world" and of the incarcerated world. We celebrate and export our commitment to free markets, civil rights, and civil liberties, yet we are also a world leader …

Passion's Progress: Modern Law Reform And The Provocation Defense, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. …