Criminal Law Commons^™

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without …

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …

Cultural Culprits, Michelle Mckinley

Studio for Law and Culture

This paper draws from a longer Article that examines questions of agency, victimization, and cultural essentialism in U.S. asylum adjudication and cultural defense cases specifically, and in international human rights law more broadly. I explore the adjudication of FGC asylum claims based on cultural persecution” that encode a racialized view of culture. I describe the historical trajectory of contemporary FGC claims through a detailed analysis of colonial anti-excision campaigns. I compare early 19th century anti-excision campaigns with contemporary maternal imperialism, as international law, UN agencies, and international financial institutions became more responsive to feminist concerns about eradicating FGC. Throughout the …

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore …

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

The contributions of order-maintenance policing and broken windows theory to New York City’s remarkable crime decline have been the subject of contentious debate. The dominant policing tactic in New York since the 1990s has been aggressive interdiction of citizens through street encounters in the search for weapons or drugs. Research showed that minority citizens in the 1990s were disproportionately stopped, frisked and searched at rates significantly higher than would be predicted by their race-specific crime rates, and that this excess enforcement was explained by the social structure of predominantly minority neighborhoods than by either their disorder or their crime rates. …

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Faculty Scholarship

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It …

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 …

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 …

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …

Beyond Protection, Philip A. Hamburger

Faculty Scholarship

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly dificult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection.

This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a "cultural defense." Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic.

The phrase "a cultural defense" suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A "cultural defense" in its most general sense refers to a wide range of ways in which evidence about a defendant's cultural …

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.

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Symposium On Pursuing Racial Fairness In Criminal Justice: Twenty Years After Mccleskey V. Kemp, Jeffrey Fagan, Mukul A. Bakhshi

Faculty Scholarship

Last year marked the twentieth anniversary of the U.S. Supreme Court's decision in McCleskey v. Kemp, a case whose ramifications for the pursuit of racial equality within criminal justice are still felt today. McCleskey set an impossibly high bar for constitutionally-based challenges seeking fundamental racial fairness in capital punishment. The McCleskey decision strengthened a jurisprudential climate that shifted and increased the burden onto defendants seeking constitutional relief from discriminatory and biased decisions at every step of the criminal justice process, from arrest to conviction and punishment. The McCleskey court articulated a crime-control rationale for tolerance of error and refused to …

Social Life And Civic Education In The Rio De Janeiro City Jail, Amy Chazkel

Studio for Law and Culture

In the six weeks from mid-July to early September 1912, about a third of the 389 men whom guards escorted through the front doors of the Rio de Janeiro city jail had been arrested for vagrancy, or in Portuguese vadiagem, an infraction whose etymological connection to the word “vague” is not a coincidence. These men remained in detention for between five days and over a year, accused by arresting police officers of having committed the crime of doing nothing. As they awaited trial or, for the least fortunate, transportation to an offshore penal colony, they shared the crowded space …

Respect And Resistance In Punishment Theory, Alice Ristroph

Studio for Law and Culture

Is it coherent to speak of a right to resist justified punishment? Thomas Hobbes thought so. This essay seeks first to (re)introduce Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist benefits (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike …

Punishment, Deterrence And Social Control: The Paradox Of Punishment In Minority Communities, Jeffery Fagan, Tracey L. Meares

Faculty Scholarship

Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the …

Legitimacy And Cooperation: Why Do People Help The Police Fight Crime In Their Communities?, Tom R. Tyler, Jeffery Fagan

Faculty Scholarship

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one's community. It uses a panel study design and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Introduction: The Challenge Of Lionel Tate, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a …

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Legitmacy And Criminal Justice, Jeffrey A. Fagan

Faculty Scholarship

Surveys of public opinion over four decades consistently show that Americans have little confidence in the fairness or effectiveness of the criminal justice system and criminal law more generally. This crisis of confidence is most acute among racial minorities: surveys show that more than one in three Whites have little confidence in the police, compared to more than half of Black respondents. Both the lack of confidence and the racial breach in perceptions of the law and legal actors have persisted for nearly four decades, regardless of whether crime was rising or falling.

But we might reasonably ask whether and …

Adolescent Development And The Regulation Of Youth Crime, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Elizabeth Scott and Laurence Steinberg explore the dramatic changes in the law’s conception of young offenders between the end of the nineteenth century and the beginning of the twenty-first. At the dawn of the juvenile court era, they note, most youths were tried and punished as if they were adults. Early juvenile court reformers argued strongly against such a view, believing that the justice system should offer young offenders treatment that would cure them of their antisocial ways. That rehabilitative model of juvenile justice held sway until a sharp upswing in youth violence at the end of the twentieth century …

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense …

Institutional Competence And Organizational Prosecutions, Daniel C. Richman

Faculty Scholarship

The business pages regularly provide graphic stories about corporate deferred prosecution agreements (“DPAs”). And commentators regularly fulminate about this alleged abuse of government power, quite confident (or w illfully blind to the fact) that the removal of this non-nuclear option from the prosecutorial arsenal would substantially lessen the ability of prosecutors to obtain cooperation from firms and their employees. Yet this emerging practice has received all too little scholarly attention, and Professor Brandon Garrett has made an important contribution by carefully examining the available facts and creatively drawing on the structure reform literature to highlight questions it raises about legitimacy …