Criminal Law Commons^™

A More Just System Of Juvenile Justice: Creating A New Standard Of Accountability For Juveniles In Illinois, Brooke Troutman

Journal of Criminal Law and Criminology

For over a century, America’s legal system has made substantial reforms to change its treatment of adolescents. Every day, we see that our legal system treats adolescents differently from their adult counterparts. With regards to driving privileges, voting rights, and the ability to drink, our laws recognize that adults and adolescents are different and therefore require a different set of standards. America extended this treatment to the realm of juvenile justice in 1899, when Cook County, Illinois, created the country’s first juvenile court. Originating in this court was the overarching purpose of America’s juvenile justice system—rehabilitation of juvenile offenders. Though …

The Local-Control Model Of The Fourth Amendment, Michael J. Zydney Mannheimer

Journal of Criminal Law and Criminology

Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated …

The Thin Blue Line From Crime To Punishment, Alice Ristroph

Journal of Criminal Law and Criminology

Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal …

Kassouf-The Sixth Circuit's Misguided Attempt To Rein In The Irs, Brian Valcarce

Journal of Criminal Law and Criminology

The omnibus clause of 26 U.S.C. § 7212(a) is a catch-all provision that broadly punishes people who corruptly endeavor to obstruct administration of the Internal Revenue Code. The Sixth Circuit, in United States v. Kassouf, improperly limited conviction under the omnibus clause to cases where the defendant had knowledge of a pending IRS investigation (a nexus test). The Sixth Circuit is the only circuit today applying this rule, with most others expressly or impliedly rejecting it. Even though the Sixth Circuit is an outlier in applying a nexus test, there has been pervasive discussion of the issue recently. There has …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

The Effects Of Body-Worn Cameras On Police Activity And Police-Citizen Encounters: A Randomized Controlled Trial, Anthony A. Braga, William H. Sousa, James R. Coldren, Jr., Denise Rodriguez

Journal of Criminal Law and Criminology

Many have suggested that placing body-worn cameras (BWCs) on police officers improves the civility of police-citizen encounters and enhances citizen perceptions of police transparency and legitimacy. In response, many police departments have adopted this technology to address public concerns over the quality of policing in their communities. The existing program evaluation evidence on the intended and unintended consequences of outfitting police officers with BWCs is still developing, however. This study reports the findings of a randomized controlled trial involving more than 400 police officers in Las Vegas, Nevada. We find that officers equipped with body-worn cameras generated fewer complaints and …

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis Of The Role Of Racial Bias In Bond Decisions And Ideas For Reform, Lydette S. Assefa

Journal of Criminal Law and Criminology

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such …

Principles Of Pretrial Release: Reforming Bail Without Repeating Its Harms, Brook Hopkins, Chiraag Bains, Colin Doyle

Journal of Criminal Law and Criminology

Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls.

This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. …

Toward A Just Model Of Pretrial Release: A History Of Bail Reform And A Prescription For What's Next, Alexa Van Brunt, Locke E. Bowman

Journal of Criminal Law and Criminology

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain …

Pre-Imprisonment Employment Drops: Another Instance Of The Ashenfelter Dip?, Charles E. Loeffler

Journal of Criminal Law and Criminology

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

Human Trafficking And Pornography: Using The Trafficking Victims Protection Act To Prosecute Trafficking For The Production Of Internet Pornography, Allison J. Luzwick

Northwestern University Law Review

The Trafficking Victims Protection Act of 2000 (TVPA) was passed to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.”1 Since the passing of the Act, federal courts have construed the statute broadly to achieve this stated purpose. One way in which the TVPA has been underutilized, however, is in prosecuting pornography cases. Pornography enjoys wide latitude under the law, protected by a vast net of First Amendment protections. While these protections may preserve freedom of speech, they do nothing …

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Professor Destiny Peery

Northwestern Journal of Law & Social Policy

No abstract provided.

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

Northwestern University Law Review

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous.

But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal …

Democratizing Criminal Justice Through Contestation And Resistance, Jocelyn Simonson

Northwestern University Law Review

Collective forms of participation in criminal justice from members of marginalized groups—for example, when people gather together to engage in participatory defense, organized copwatching, community bail funds, or prison labor strikes—have a profound effect on everyday criminal justice. In this Essay I argue that these bottom-up forms of participation are not only powerful and important, but also crucial for democratic criminal justice. Collective mechanisms of resistance and contestation build agency, remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional meanings. Many of these forms of contestation display a faith in local democracy as …

Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …

Why Prosecutors Rule The Criminal Justice System—And What Can Be Done About It, Jed S. Rakoff

Northwestern University Law Review

Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have …

Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle …

Democratizing Criminal Law As An Abolitionist Project, Dorothy E. Roberts

Northwestern University Law Review

The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.

White Paper Of Democratic Criminal Justice, Joshua Kleinfeld, Laura I. Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R A Duff, Albert W. Dzur, Thomas F. Geraghty, Adriaan Lanni, Marah Stith Mcleod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler, Ekow N. Yankah

Northwestern University Law Review

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.

Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman

Northwestern University Law Review

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …

Fragmentation And Democracy In The Constitutional Law Of Punishment, Richard A. Bierschbach

Northwestern University Law Review

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, …

A Criminal Law We Can Call Our Own?, R A Duff

Northwestern University Law Review

This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity …

Criminal Justice That Revives Republican Democracy, John Braithwaite

Northwestern University Law Review

Criminal justice seems an implausible vehicle for reviving democracy. Yet democracy is in trouble. It is embattled by money politics and populist tyrannies of majorities, of which penal populism is just one variant. These pathologies of democracy arise from democracy having become too remote from the people. A new democracy is needed that creates spaces for direct deliberative engagement and for spaces where children learn to become democratic. A major role for restorative justice is one way to revive the democratic spirit through creating such spaces.

Policing And Procedural Justice: Shaping Citizens' Identities To Increase Democratic Participation, Tracey Meares

Northwestern University Law Review

Like the education system, the criminal justice system offers both formal, overt curricula—found in the Bill of Rights, and informal or “hidden” curricula—embodied in how people are treated in interactions with legal authorities in courtrooms and on the streets. The overt policing curriculum identifies police officers as “peace officers” tasked with public safety and concern for individual rights, but the hidden curriculum, fraught with racially targeted stop and frisks and unconstitutional exercises of force, teaches many that they are members of a special, dangerous, and undesirable class. The social psychology of how people understand the fairness of legal authorities—procedural justice—is …

From Harm Reduction To Community Engagement: Redefining The Goals Of American Policing In The Twenty-First Century, Tom R. Tyler

Northwestern University Law Review

Society would gain if the police moved away from the goal of harm reduction via crime reduction and toward promoting the economic, social, and political vitality of American communities. Research suggests that the police can contribute to this goal if they design and implement their policies and practices in ways that promote public trust. Such trust develops when the police exercise their authority in ways that people evaluate as being procedurally just.

Racing Abnormality, Normalizing Race: The Origins Of America's Peculiar Carceral State And Its Prospects For Democratic Transformation Today, Jonathan Simon

Northwestern University Law Review

For those struggling with criminal justice reform today, the long history of failed efforts to close the gap between the promise of legal equality and the practice of our police forces and prison systems can seem mysterious and frustrating. Progress has been made in establishing stronger rights for individuals in the investigatory and sanctioning stages of the criminal process; yet, the patterns of over-incarceration and police violence, which are especially concentrated on people of color, have actually gotten worse during the same period. Seen in terms of its deeper history however, the carceral state is no longer puzzling: it has …

Punishing On A Curve, Adi Leibovitch

Northwestern University Law Review

Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.”

Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes sentencing outcomes. …

Restoring Democratic Moral Judgment Within Bureaucratic Criminal Justice, Stephanos Bibas

Northwestern University Law Review

While America's criminal justice system is deeply rooted in the ideal of a popular morality play, it has long since drifted into becoming a bureaucratic plea bargaining machine. We cannot (and would not want to) return to the Colonial Era. Even so, there is much more we can do to reclaim our heritage and incorporate popular participation within our lawyer-run system. That requires pushing back against the relentless pressures toward efficiency and maximizing quantity, to ensure that criminal justice treats each criminal with justice, as a human and not just a number. The criminal justice system must narrow its ambitions …

Pro-Prosecution Doctrinal Drift In Criminal Sentencing, Margaret Truesdale

Northwestern University Law Review

Federal criminal sentencing doctrine is growing increasingly favorable to the prosecution. This Note identifies two factors that contribute to this “doctrinal drift.” First, district courts rarely issue written opinions in the sentencing context. Second, prosecutors, unlike defense attorneys, can strategically forego appeal in an individual case to avoid the risk that the lower court’s pro-defense reasoning will be affirmed and become binding precedent. In fact, 99% of all appeals of sentencing decisions are defense appeals. When defendants appeal pro-prosecution lower court decisions, the appellate court usually affirms, in part due to deference. The result is a one-sided body of case …