Criminal Law Commons^™

Individualized Cannabis Reparations, Scott Bloomberg

Faculty Publications

This Article makes an argument that should be obvious. The best way for governments to right the wrongs of cannabis prohibition is to give money to people with cannabis offenses. Nonetheless, this straightforward reform has been consistently overlooked, dismissed, or minimized by policymakers and scholars alike, eschewed in favor of other social equity programs that do not right those wrongs nearly as effectively. Governments have indeed invested hundreds of millions of cannabis tax dollars in social equity licensing programs and community reinvestment initiatives. These programs-while often worthwhile-do not benefit the vast majority of people with past cannabis offenses. Governments should …

Punishment And Regret, Michelle Madden Dempsey

Faculty Publications

This essay is a contribution to a symposium on Adam Kolber’s Punishment for the Greater Good. As the title suggests, the essay focuses on the issues of punishment and regret. Its main thrust is a critique of Kolber’s failure to acknowledge the salience of retrospective normativity. This failure divorces Kolber’s attempt to justify punishment from our actual current carceral practices, which are fundamentally backward-looking responses to past (actual or supposed) wronging. It also limits Kolber’s ability to account for the normative reasons we have to regret these practices: mistaking regret as solely a matter of feeling and human psychology, while …

(Re)Individualizing Criminal Law, Itay Ravid

Faculty Publications

Criminal law purports to care about the individual culpability of those committing crimes. Individual mental states or defenses based on one’s beliefs are considered foundational to moral responsibility and criminal conviction. The expansion of algorithmic risk assessment tools in the criminal legal system, however, threatens these principles, changing the criminal law subject from an autonomous individual to merely a predicted object. This Article argues that risk assessment tools—now functioning as gatekeepers at both the entry and exit stages of the criminal process, from predictive policing to compassionate release eligibility—have shifted the criminal system away from its foundation in individual culpability. …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

Missing Children Discrimination, Itay Ravid, Tanisha Brown

Faculty Publications

The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In …

Anti-Holistic Algorithms, Itay Ravid

Faculty Publications

This Article presents a critical tension in modern criminal justice between holistic criminal-justice aspirations and algorithmic governance: whether the holistic rehabilitation and reintegration project can survive technological determinism. As criminal legal systems embrace algorithmic risk- assessment tools as solutions to address recidivism, this Article reveals a profound epistemological concern: the fundamental incompatibility between viewing offenders as “whole persons” capable of transformation and reducing them to statistical probabilities within computational matrices. By doing so, it demonstrates how algorithmic mediation fundamentally alters—and potentially destroys—the holistic message itself.

In establishing this argument, the Article advances in two stages. It first identifies the development …

Appendix: Selected Quotes From Prosecutors' Interview Responses, Anna Arons

Faculty Publications

No abstract provided.

The Model Minority Victim, Elaine M. Chiu

Faculty Publications

The rise in xenophobia, hate and violence against AAPI Americans inspired by the COVID-19 pandemic was an opportunity to assess the effectiveness of the criminal legal system as a tool of anti-racism. This Article traces the legal aftermath when Asian New Yorkers reported 276 possible hate crimes to the police in 2021. The analysis takes an empirical approach and a narrative approach. It relies on a unique database that followed what happened to civilian complaints of anti-Asian crimes from beginning to end. Using metrics such as arrest rates and conviction rates, the Article draws initial conclusions about the systemic legal …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Faculty Publications

(Excerpt)

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

In recent years, scholars have called on their …

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Distorted Narratives In The Treatment Program Complex, Evelyn Lia Malavé

Faculty Publications

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by …

Criminal Courteaucracy, Evelyn Malavé

Faculty Publications

Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, literature on criminal courts has almost exclusively focused on judges, prosecutors, and defense attorneys, and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized set of actors: criminal-court administrators.

Through an in-depth case …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

140 Characters To Justice? The Promise And Perils Of Using Social Media To Reveal Lay Punishment Perspectives, Itay Ravid, Rotem Dror

Faculty Publications

For centuries, penal theorists have debated two key criminal justice questions: justifying state punishment power and determining proper punishment levels. Moral philosophers offered several theories to address these questions. Over time, calls emerged to move beyond theories and to consider community views on punishment rationales in criminal law and policy design, an approach that gained support alongside meaningful critique. Concurrently, social science advancements enabled empirically deepening understanding of public attitudes about punishment, largely through surveys and experiments.

One domain, however, remained untouched by those calling to assess lay intuitions of justice: social media. Such oversight is puzzling in light of …

Virtual Criminal Law Dualism, Itay Ravid, Hadar Dancig-Rosenberg

Faculty Publications

Since the start of the new millennium, technological and societal changes have initiated a transition from physical to virtual spaces. This farreaching phenomenon has extended to the law and legal institutions, including the criminal law domain. This essay coins the term “virtual criminal law dualism” to describe the dynamic relationship between the virtual and physical spaces in the criminal law sphere. We contend that the transition to virtual spaces has manifested in two distinct aspects. The first relates to formal doctrinal, procedural, and institutional changes that the mainstream criminal law and procedure have undergone due to the emergence of virtual …

Human Trafficking, Cults, & Coercion: The Use Of Drugs As A Tool, Robin Boyle-Laisure

Faculty Publications

Thanks to the successful prosecution of sex traffickers, the definition and proof of “coercion” now encompasses evidence showing the use of addictive drugs as a tool. This article describes two case examples, and in both, the perpetrators supplied abundant amounts of addictive substantives. Once those victims became addicted and feared the pain of withdrawal, the sex traffickers forced the victims to perform commercial sex acts to pay off the drug debt they incurred, feeding the addiction the traffickers caused. Coercion by way of intentional drug addiction and control is a theory that expands the operative word “coercion.” This short article …

Judge Frankel’S Fifty-Year-Old Invitation To Reconstruct Sentencing, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

America was a different place at the time Judge Marvin Frankel penned his now-famous text Criminal Sentences: Law without Order in 1973. Richard Nixon was the U.S. president. The Vietnam War was ending. The Watergate scandal was unfolding. There was much to grab the public’s attention, and criminal sentencing was not a national or international headline. Just two years earlier, President Nixon had declared a war on drugs and targeted drug abuse as “public enemy number one,” but it would be over a decade before punitive mandatory minimum drug sentences would become our sentencing norm. At the time of …

Rightsizing Local Legislatures, Brenner M. Fissell

Faculty Publications

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Sex And Coercion: Comments On Green's Criminalizing Sex, Michelle Madden Dempsey

Faculty Publications

In chapter seven of Stuart Green’s magnificent book, Criminalizing Sex, he considers the crime of rape by coercion. In doing so, he takes up several related questions, including how we should distinguish between coercive threats and so-called coercive offers, and how to distinguish between coercive and non-coercive offers. My comments proceed in five steps. In section one, I argue that we should not bother making any distinction between threats and offers, since the two are intertranslatable. In section two, I examine various baselines that might be used to identify coercive proposals (regardless of whether they appear in the form of …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

Against Criminal Law Localism, Brenner M. Fissell

Faculty Publications

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints. In making these claims, localists have at times either explicitly included control over substantive criminal law in their devolutionary project, or have overlooked that more general calls for localism would presumably include this power.

This Article critiques substantive criminal law localism, arguing that …

The Havoc Death Wreaks: Civil Rights Challenges To Capital Punishment, Bailey D. Barnes

Faculty Publications

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty …

Inconceivability, Horror, And The Mercy Seat, Thomas Simmons

Faculty Publications

In an ordinary home in Huron, South Dakota-sometime in the very early morning hours of Sunday, April 5, 1987-a young girl was murdered in her crib. By March of the next year, her mother, Debra Jenner, had been convicted of second-degree murder. She was sentenced to life in prison. Although she became eligible for parole in 2003 after Governor Janklow commuted her sentence, her applications for discretionary parole were consistently denied. She remained incarcerated until last year, when she was finally granted parole. This essay embarks on a retelling of Debra Jenner's trial, her subsequent post-conviction proceedings, and her numerous …

Review: Wendy A. Bach, Prosecuting Poverty, Criminalizing Care, Anna Arons

Faculty Publications

(Excerpt)

“Lock ’em up, clean ’em up, and start over” (145). This is how a drug treatment coordinator in a court in East Tennessee sums up her approach to provisioning substance use services to poor Tennesseans. If someone needs treatment, the most expeditious route—often, the only route—is through the criminal legal system. First, the court administrator casts about for a criminal charge, hopefully a “little charge,” that the person can be arrested on. Then, once they are arrested, they can be brought to jail where they can detox, with no medical supervision and no medication to ease the detox. And …

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the white liberal elite.

Where Black Lives Matter Less: Understanding The Impact Of Black Victims On Sentencing Outcomes In Texas Capital Murder Cases From 1973 To 2018, Jelani Jefferson Exum, David Niven

Faculty Publications

The systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd’s resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately …

A Dose Of Dignity : Equitable Vaccination Policies For Incarcerated People And Correctional Staff During The Covid-19 Pandemic, Itay Ravid, Jordan M. Hyatt, Steven L. Chanenson

Faculty Publications

Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution …