Criminal Law Commons^™

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Redefining Sex Offenders: The Fight To Break The Bias Of Female Sex Offenders, Norma Hamilton

Journal of Race, Gender, and Ethnicity

No abstract provided.

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Decarceration And Default Mental States, Benjamin Levin

Publications

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of …

2021: How Gender And Race Affect Justice Now - Final Report, Justice Sheryl Gordon Mccloud, Dana Raigrodski, Sierra Rotakhina, Kelley Amburgey-Richardson

Books

In 1989, the Washington Supreme Court’s Task Force on Gender and Justice in the Courts produced a groundbreaking report on the impact of gender on selected areas of the law. It concluded that gender did affect the availability of justice. We – the Washington State Supreme Court Gender and Justice Commission – are a product of that report and its recommendations. Now, in 2021, we have completed our follow-up study.

Our legal and social science research, our data collection, and our independent pilot projects all led us to the same frustrating conclusion about the effect of gender in Washington State …

Erasing Evidence Of Historic Injustice: The Cannabis Criminal Records Expungement Paradox, Julie E. Steiner

Faculty Scholarship

Cannabis prohibition and its subsequent enforcement have yielded an epic societal tragedy. The decision to criminalize cannabis was a paradigm-shifting moment in legal history because it converted lawful medicinal or intoxicant seeking conduct into criminal activity, inviting government intrusion into matters previously self-controlled.

Scholars increasingly recognize that prohibition was built upon a decades-long, false, media-driven narrative that “marijuana” was one of society’s worst menacing enemies. Using overtly racist propaganda, the narrative successfully captured the audience, fomenting public anxiety and unfairly demonizing cannabis and its users. This misinformation campaign ultimately led to its current status as prohibited under the federal Controlled …

From The Legal Literature: Is Progressive Prosecution Possible?, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Confronting The Biased Algorithm: The Danger Of Admitting Facial Recognition Technology Results In The Courtroom, Gabrielle M. Haddad

Vanderbilt Journal of Entertainment & Technology Law

From unlocking an iPhone to Facebook “tags,” facial recognition technology has become increasingly commonplace in modern society. In the wake of the Black Lives Matter movement and call for police reform in the United States, it is important now more than ever to consider the implications of law enforcement’s use of facial recognition technology. A study from the National Institute of Standards and Technology found that facial recognition algorithms generated higher rates of false positives for Black faces—sometimes up to one hundred times more false identifications—than white faces. Given the embedded bias of this technology and its increased prevalence, the …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

Women's Votes, Women's Voices, And The Limits Of Criminal Justice Reform, 1911-1950, Carolyn B. Ramsey

University of Colorado Law Review

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience-through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Confrontation In The Age Of Plea Bargaining, William Ortman

Scholarly Works

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s witnesses. This Essay argues that the Supreme Court should align its Confrontation Clause jurisprudence with the reality of contemporary criminal justice. The Sixth Amendment grants a criminal defendant the right …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Citizens, Suspects, And Enemies: Examining Police Militarization, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to …

Wage Theft Criminalization, Benjamin Levin

Publications

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Seeing And Responding: How Students Perceive School Personnel To Fail To Respond To Bullying, Ethan M. Higgins, Benjamin W. Fisher, Maury Nation

Qualitative Criminology (QC)

"Although research has shown that students and school personnel believe that adults respond to bullying at different rates, it is unclear why these differences occur. Using open-ended survey responses from 189 students, this study investigates why students perceive that school personnel fail to respond to bullying. Students articulated a variety of reasons for school personnel’s lack of response, including ways in which they could fail to see, notice, or respond to the bullying. In turn, students used their agency to understand and counteract school personnel’s lack of response. Theoretical and policy implications are discussed."

Disparity In Context: Judges’ Perspectives On Disparities In A Sentencing Guideline System, Justin M. Smith

Qualitative Criminology (QC)

"Unwarranted disparity in sentencing continues to be a problem in criminal courts. Sentencing, a final step in the multi-stage process of criminal justice, is seen as such an important component of ensuring consistency that legislative policy has created guidelines to control judicial decision-making. Nonetheless, research shows that disparity under sentencing guidelines persists due to influences external to the law - referred to as substantive rationality. Sentencing research overwhelmingly utilizes quantitative analysis of official court data to produce its conclusions about the influences of disparity. The current study builds upon past research by using qualitative analysis of interviews with 20 judges …

Social Exchange And The Formation Of Prison Visitation Communities, Adam Trahan, Douglas Evans

Qualitative Criminology (QC)

"Family members and significant others of incarcerated individuals suffer when their loved ones are incarcerated. The loss of a parent, sibling, child, spouse, or partner to incarceration can be painful. If they wish to stay physically connected to an incarcerated individual, visitation is their only recourse. Visiting a prison can be costly in terms of the amount of time it takes to travel to the facility, the total expenses incurred during travel, and the socio-emotional effects of limited contact. On top of these costs, visitation can be an intricate process to navigate due to the multitude of facility rules and …

Perceptions Of Rehabilitative Change Among Incarcerated Persons Enrolled In A Prison-Equine Program (Pep), Joyce A. Arditti, Amy A. Morgan, Sara Spiers, Virginia Buechner-Maxwell, Vicky Shivy

Qualitative Criminology (QC)

"Guided by a grounded theory methodology, the authors propose a theory of rehabilitation for incarcerated persons within a prison equine program (PEP). Interviews with ten incarcerated men yielded a grounded theory of rehabilitative change centered around the importance of relationships with program staff and horses, and the uniqueness of the barn-equine environment in promoting safe attachments and positive views of self. Special emphasis is placed on the development of secure reparative attachments between men and their horses grounded in acceptance and mutual empathy, as well as the development of redemptive identities whereby participants viewed themselves as having purpose and value …

Racial Adultification And The American Criminal Justice System, Keshia Dauphin

Master’s Theses and Projects

African Americans are overrepresented in the criminal justice system and known to experience disadvantages in society because of their race, ethnicity and sometimes gender. With determination to understand the barriers that hinder African Americans from equal opportunities; this thesis explores the disparities against Black boys in the American criminal justice system. This thesis uses a qualitative study approach in which I analyze three historical cases that happened in different eras, George Stinney Jr. (1944), Central Park Five (1989); and Tamir Rice (2014). Each case will demonstrate the denial of Black childhood and Black boys being seen as adults, mistreated and …

Labor Redemption In Work Law, Andrew Elmore

Faculty Scholarship

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks

This Article challenges this standard account by shifting focus to the state in imposing …

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood

LLM Theses

The retributive justification of Canadian criminal law contains several assumptions about human nature that conflicts with what neuroscience has established regarding human behavior and the function of rationality. Interdisciplinary discourse on this conflict between law and neuroscience has unnecessarily implicated the free will debate and is further stagnated by epistemic cultural differences between the two disciplines. To avoid these roadblocks, this thesis applies the methodological principles of pragmatic philosophy. Rather than asking which description of human nature is true, pragmatic inquiry focuses on the difference either would make in practice. This analysis reveals that retributive folk psychology in practice causes …

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

This Symposium comes at a critical juncture for America's prosecutors. One important question-"Is there room for a new kind of prosecutor?"- has already been answered. Self-styled "progressive prosecutors" are flourishing in jurisdictions across the country. The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be. One way this question will be answered is through the movement's influence on the many prosecutors who are open to reform but unlikely to adopt the "progressive" label or accompanying rhetoric. This Essay explores this theme by discussing, first, the rise of progressive prosecution …

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

Introduction, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

An Introduction by Angela J. Davis Distinguished Professor of Law, American University Washington Collge of Law

The scourge of mass incarceration has plagued the United States for decades. With roughly 2.3 million people in federal and state prisons and close to 7 million people under some form of criminal justice control' in prison or jail or on probation and parole-this country maintains the unenviable status of having the highest incarceration rate in the world. Demands for reform have come in fits and starts, resulting in modest changes that have done little to reduce the number of people incarcerated or under …

Justice For All? An In-Depth Look At Sexual Assault Kit Testing In The Carolinas, Jessalynn C. King

Senior Theses

Within the last few decades, technological advancements and an improved understanding of biological materials have led to an increase in evidence that can be submitted for forensic testing in criminal justice investigations. In a sexual assault investigation, a sexual assault kit (SAK) is often collected and contains the evidence found on the victim’s or suspect’s person. While the true total is unknown, it is estimated that several hundred thousand untested SAKs remain in the custody of law enforcement and forensic crime laboratories across the United States. Whether these SAKs were neglected due to law enforcement bias, the prioritization of other …

Emergency Parole Release For Older Parole-Eligible Doc Inmates, David I. Bruck

Scholarly Articles

Professor Bruck writes to Secretary Moran and Chairwoman Bennett to urge them to protect elderly Virginia prison inmates from the risk of death from COVID-19 by granting immediate parole release to as many over-60 parole-eligible prisoners as possible, upon a showing that they are at low risk to re-offend, and have a supportive home to go to once released.

Controlled Observation: The Challenges Of Therapy For The Mentally Ill Incarcerated Population, Esther Tingué

Dissertations, Theses, and Capstone Projects

Popular perception and objective of incarceration is confinement, brutality and in some cases inhumane conditions. But what about the incarcerated population who suffer from the additional burden of mental illness? How does confinement affect mentally ill inmates? This capstone project asks: (1) how do individuals/organizations provide rehabilitative services in this evolved culture of crime and punishment? And (2) how is therapy provided in a restricted environment? I examine these questions from the perspective of the therapist, the person who (in a restricted environment) takes on the responsibility of treating and managing the effects of mental illness for this population.

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally …

State Prosecutors At The Center Of Mass Imprisonment And Criminal Justice Reform, Nora V. Demleitner

Scholarly Articles

State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative …