Law Commons^™

Modes Of Discretion In The Criminal Justice System, Roger Fairfax

Presentations

No abstract provided.

Confronting The Challenges Of Persons Who Are Mentally Ill: A Judge's Perspective, Kathryn E. Zenoff

Northern Illinois University Law Review

In the last fifty years, persons with serious mental illnesses have gone from being institutionalized in psychiatric hospitals to being institutionalized in our county jails. The phenomenon has been called the "criminalization of the mentally ill" and has had adverse consequences both for our communities and for those persons with mental illnesses. This foreword discusses one judge's experiences in attempting to rise to the challenge of meeting the needs of persons with mental illnesses in the criminal justice system. The discussion extends to local, state, and national initiatives. These include the Therapeutic Intervention Program Court in Winnebago County, Illinois, and …

Examining The Impact Of Drug Court Participation For Moderate And High Risk Offenders, Kara Kobus

UNLV Theses, Dissertations, Professional Papers, and Capstones

The purpose of this study was to examine the impact of drug court participation among moderate and high risk offenders. While studies have found that intensive programs, such as drug courts, are more effective when focusing their services on high risk offenders, few studies have examined the relationship between offender risk and drug court effectiveness. Using the Level of Service Inventory-Revised (LSI-R) as a measure of offender risk, the study employed a quasi-experimental design to compare outcomes of drug court participants (n=228) and a matched sample of probationers (n=252). The analyses showed that drug court participants had lower rates of …

Comment On Using Criminal Punishment To Serve Both Victim And Social Needs, John O. Haley

Law and Contemporary Problems

Haley comments on the argument underlying the article by Erin Ann O'Hara and Maria Mayo Robbins, which emphasizes on victim-offender mediation (VOM). By expanding the frame of reference, restorative justice can be defined as a paradigm whose scope encompasses more than VOM and whose emphasis includes the needs of society and offenders as well as victims. Restorative justice involves a wide variety of processes and programs that are more apt to restore both those who commit and those who suffer wrongs. It includes children at risk programs, drug courts, violence-treatment programs, as well as VOM programs. It also includes efforts …

Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins

Law and Contemporary Problems

In recent decades, the criminal-justice pendulum has swung to the opposite extreme. Criminal law is often described as covering disputes between the offender and the state. Victims are not direct parties to criminal proceedings, they have no formal right to either initiate or terminate a criminal action, and they have no control over the punishment meted out to offenders. In this state-centric system, victim needs have been left unsatisfied, giving rise to a politically powerful victims' rights movement that has had success in giving victims rights of access to prosecutors and rights to be heard in the courtroom. Here, O'Hara …

The Criminalization Of Mental Illness: How Theoretical Failures Create Real Problems In The Criminal Justice System, Georgia L. Sims

Vanderbilt Law Review

When Andrea Yates drowned her five children, she believed she was preventing Satan from infiltrating their souls. Rusty Yates blamed both the mental health system and the criminal justice system for his wife's actions and also for her initial conviction. Andrea Yates suffered from post-partum depression and psychosis; had attempted suicide twice; had been hospitalized on several occasions for psychiatric treatment; and was found not guilty by reason of insanity in her 2006 retrial.' Although Yates likely will spend the rest of her life in a mental institution, she will receive mental health treatment throughout her time at the facility. …

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

Never Being Able To Say You’Re Sorry: Barriers To Apology By Leaders In Group Conflicts, Roger Conner, Patricia Jordan

Law and Contemporary Problems

Conner and Jordan discuss three implications of the foregoing analysis for leaders, peacemakers, and scholars interested in apology as an instrument to advance justice, prevent destructive conflict, and promote cooperation. First, an effective apology is likely to occur only after other changes have "softened up" negative attitudes between the groups--referred to here as "ripeness." Second, even with a degree of ripeness, apology is unlikely without a "window of opportunity," a confluence of circumstances that permits the leader to limit the scope of the apology so as not to concede too much. Third, even if these conditions are satisfied, words alone …

Saving Face: The Benefits Of Not Saying I’M Sorry, Brent T. White

Law and Contemporary Problems

White discusses the socio-psychological research that suggests humans invest significant emotional stake in "face"--or their "claimed identity as a competent, intelligent, or moral persons"--and apologize only when they can do so without significant "face threat." Criminal offenders, many of whom are likely to be low on self-determination, may resist apology to victims out of psychological fragility and the psychological need to preserve face rather than lack of remorse. Thus, the criminal-justice system should be cautious about punishing offenders more harshly because they fail to show external remorse--or even when they are openly defiant. This caution should be exercised whether the …

Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison

Vanderbilt Law Review

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Reforming Eyewitness Identification Law And Practices To Protect The Innocent, Margery Koosed

Akron Law Faculty Publications

This article discusses varying eyewitness identification reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The author concludes a comprehensive reform that includes tightening exclusionary rules, along with (minimally) corroboration requirements for death-sentencing, and more appropriately, for convictions in capital and non-capital cases, with a concomitant loosening of standards for relief on appeal, hold the most promise.

The article addresses adopting best practices; assuring compliance by means of exclusion; admitting expert testimony and educating juries; instructing on the vagaries of eyewitness identification; requiring corroboration with independent and …

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 …

Reforming Eyewitness Identification Law And Practices To Protect The Innocent, Margery Koosed

Margery Koosed

This article discusses varying eyewitness identification reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The author concludes a comprehensive reform that includes tightening exclusionary rules, along with (minimally) corroboration requirements for death-sentencing, and more appropriately, for convictions in capital and non-capital cases, with a concomitant loosening of standards for relief on appeal, hold the most promise.

The article addresses adopting best practices; assuring compliance by means of exclusion; admitting expert testimony and educating juries; instructing on the vagaries of eyewitness identification; requiring corroboration with independent and …

The Violent Bear It Away: Emmett Till & The Modernization Of Law Enforcement In Mississippi, Anders Walker

All Faculty Scholarship

Few racially motivated crimes have left a more lasting imprint on American memory than the death of Emmett Till. Yet, even as Till's murder in Mississippi in 1955 has come to be remembered as a catalyst for the civil rights movement, it contributed to something else as well. Precisely because it came on the heels of the Supreme Court's 1954 ruling in Brown v. Board of Education, Till's death convinced Mississippi Governor James P. Coleman that certain aspects of the state's handling of racial matters had to change. Afraid that popular outrage over racial violence might encourage federal intervention in …

Teaching Whren To White Kids, M. K.B. Darmer

Michigan Journal of Race and Law

This Article addresses issues at the intersection of United States v. Whren and Grutter v. Bollinger at a time when the reality of racial profiling was recently illustrated by the high-profile arrest of a prominent Harvard professor. Given the highly racialized nature of criminal procedure, there is a surprising dearth of writing about the unique problems of teaching issues such as racial profiling in racially homogeneous classrooms. Because African American and other minority students often experience the criminal justice system in radically different ways than do Whites, the lack of minority voices poses a significant barrier to effectively teaching criminal …

Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen

Faculty Publications

Despite spending more than any other state on its implementation and administration, California today is saddled with a death penalty law that can be described only as completely dysfunctional. We have the longest death row in America, with approximately 670 inmates awaiting execution. Typically, the lapse of time between sentence and execution is twenty-five years, twice the national average, and is growing wider each year. One hundred nineteen inmates have spent more than twenty years on California's death row. Most of them will certainly die before they are ever executed. Since restoration of the death penalty in 1978, the leading …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Rethinking Criminal Law And Family Status , Dan Markel, Ethan J. Leib, Jennifer M. Collins

Faculty Scholarship

In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the …

Research On The Effectiveness Of The Rhode Island Adult Drug Court, Stephen T. Burke

Honors Projects

Investigates the effectiveness of the Rhode Island Adult Drug Court Program (RIADC) by examining the impact of the treatment modalities offered by the Drug Court on paticipants' likelihood of graduating successfully from the Program. Uses data on the seventy-one participants in the Program during the 2005/6 Court cycle, and describes the results in detail.

How To Make After School Programs Work: A Study Of Successful After School Programs In Five States, Caitlin Laboissonniere

Honors Projects

Explores the factors that make a high school after school program successful. Eight programs from five states participated by completing a voluntary survey. Half of the programs are categorized as being a success, with results indicating that the types of activities offered to teens is the most important aspect in ensuring a successful after school program.

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 …

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are …

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 …

A Comparative Examination Of The Purpose Of The Criminal Justice System, James Diehm

James W. Diehm

A recent Gallup poll found that only 20% of Americans have a substantial amount of confidence in our criminal justice system, a 14% decline from only four years ago. Since the legitimacy of our criminal justice system depends upon the public’s confidence in that system, this is matter of great concern. As a result of my acquaintance with both our system and the inquisitorial system used in Europe and elsewhere, I am aware of the specific areas that lead the American public to distrust our process and the way in which those areas are dealt with in the inquisitorial system. …