Law Commons^™

Abolition And Environmental Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

During the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, …

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

Dangerous Defendants, Sandra G. Mayson

Scholarly Works

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Mental Disorder And Criminal Justice, Stephen J. Morse

All Faculty Scholarship

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

Dangerous Defendants, Sandra G. Mayson

All Faculty Scholarship

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Strict Liability's Criminogenic Effect, Paul H. Robinson

All Faculty Scholarship

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

One Decade Later: Florida's Stand Your Ground Law Alive And Well, Shahabudeen Khan

Faculty Scholarship

“I feel paranoid all the time.”1 That is how a seventeen-year old black varsity high school basketball player from Lauderhill, Florida expressed his emotions after a Lauderhill police officer ordered him and his friends to the ground for no apparent reason.2 Imagine living life in one of the most developed, wealthiest nations in the world with such fear. As a minority law professor, I share the same feelings, and often wonder whether I am next. However, that would be too egocentric. What of those who have suffered or lost lives; those who must face paranoia as an ill-fated …

There's A Dyin Voice Within Me Reaching Out Somewhere: How Tj Can Bring Voice To The Teaching Of Mental Disability Law And Criminal Law, Michael L. Perlin

Articles & Chapters

In this article, I discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this is all positive and supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship and in “real life,” I also share some information that is far from optimistic with regard to the way that TJ is being reacted to by …

Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

All Faculty Scholarship

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …

Criminal (In)Justice And Democracy In America, Stephanos Bibas

All Faculty Scholarship

This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of …

The Extradition Treaty Between Jamaica And The United States: Its History And The Saga Of Christopher "Dudus" Coke", Kenneth L. Lewis

Faculty Scholarship

No abstract provided.

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

All Faculty Scholarship

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

All Faculty Scholarship

This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each …

Taming Negotiated Justice, Stephanos Bibas

All Faculty Scholarship

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …

Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet

Faculty Working Papers

This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …

The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich

Faculty Working Papers

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. Somali piracy has become perhaps the highest-volume area of international criminal law by national courts. As with other international crimes, international law is silent on the subject of penalties. The large number of parallel prosecutions of offenders from a single international "situation" offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current …

Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler

Faculty Working Papers

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels

All Faculty Scholarship

The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).

XPFs, the subject of this Article, include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, as well …

The Machinery Of Criminal Justice, Stephanos Bibas

All Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

All Faculty Scholarship

This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet

Faculty Working Papers

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book -- Fugitive Justice: Runaways, Rescuers, and Slavery on Trial -- which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

Regulating The Plea-Bargaining Market: From Caveat Emptor To Consumer Protection, Stephanos Bibas

All Faculty Scholarship

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until …

Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse

All Faculty Scholarship

This article is a contribution to a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review devoted to whether severe environmental deprivation, sometimes termed rotten social background, should be a defense to crime and why it has not been adopted. I begin by presenting the framework I apply for thinking about such problems. I then identify the main theses Professors Richard Delgado and Andrew Taslitz present and consider their merits. Next, I turn to the arguments of the other papers by Professors Paul Robinson, Erik Luna and Angela Harris. I make two general arguments: first, that SED …

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

All Faculty Scholarship

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

Defending A Person Charged With Genocide, Anthony D'Amato

Faculty Working Papers

I was asked to represent Dr. Milan Kovacevic who had been indicted by the International Criminal Tribunal for Yugoslavia ("ICTY") for complicity in genocide. Had he lived through it, his trial would have been the first by the ICTY for the crime of genocide. I would like to describe some of the tribulations of defending clients accused of grave humanitarian offenses in the ICTY.

On Genocide, Anthony D'Amato

Faculty Working Papers

The crime of genocide is the newest international crime. It must be kept as a separate, distinct, and coherent concept. It is the first truly subjective crime; all other crime, though requiring mens rea, require only that the defendant consciously committed the criminal acts. In the case of genocide, however, the underlying criminal acts are no different from the acts required to prove ordinary crimes. The difference is one of motive. What is being punished by the crime of genocide is the selection of victims according to their involuntary membership in four kinds of groups: national, ethnical, racial, or religious. …