Criminal Law Commons^™

Punishment, Liberalism, And Public Reason, Chad Flanders

All Faculty Scholarship

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

Criminal Law As Family Law, Andrea L. Dennis

Scholarly Works

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in …

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This Article, the most comprehensive study ofjudicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. We learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

The School-To-Prison Pipeline: How Roles Of School-Based Law Enforcement Officers May Impact Disciplinary Actions, Kathy Martinez-Prather, Joseph M. Mckenna, Scott W. Bowman

Qualitative Criminology (QC)

"The presence of law enforcement officers in schools has generated an overwhelming amount of concern among educators, parents, researchers, and policy-makers. It is believed their mere presence in schools is associated with the school-to-prison pipeline (STPP), which suggests that the use of police criminalizes minor student behavior and pushes them into the juvenile and criminal justice systems. However, it remains unclear as to what impact law enforcement officers truly have on this phenomenon. The purpose of this study is to examine the impact of law enforcement officers on the STPP in relation to the roles they are assigned. We argue …

The Emergence Of Contemporary Bestiality Law: Applying The Integrative Conflict Model To The Enumclaw Case, Jason S. Ulsperger, Kristen L. Ulsperger, Cole Smith

Qualitative Criminology (QC)

"This article examines the social construction of bestiality law in the United States using the Integrative Conflict Model of law formation. With qualitative findings from a media content study including newspaper articles, a documentary transcript, and a variety of online data sources, it explores the dynamics behind the formation of bestiality law in the state of Washington. The research specifically uses the circumstances surrounding the death of Kenneth Pinyan, and the subsequent Enumclaw horse sex scandal that took place in the summer of 2005, to support the idea that bestiality law can emerge due to specific factors: structural foundations, perceptions …

Lois Presser And Sveinung Sandberg (Eds), Narrative Criminology: Understanding Stories Of Crime, Adam Veitch

Qualitative Criminology (QC)

"Over the last two decades there has been an epistemological push in the social sciences to bring narrative into the methodological fold. Narrative social science is steeped in theories of humans as story tellers. The foreword to Narrative Criminology argues that this theoretical line of thought originates in Jean-Paul Sartre’s belief that people are fundamentally storytelling creatures, or “homo narrativus.” The guiding thought here is that stories are central to understanding how and why we act in society. We are all storytellers, and we enjoy sharing tales with an audience. Furthermore, the way that we construct stories of our social …

Fugitive Safe Surrender: A Qualitative Analysis Of Participants’ Reasons For Surrender And Anticipated Outcomes To Inform Program Evaluation, Joseph D. Galanek, Janelle Duda, Daniel J. Flannery, Jeff Kretschmar, Frederick Butcher

Qualitative Criminology (QC)

"The Fugitive Safe Surrender (FSS) program is a means for individuals with outstanding warrants to turn themselves in at a non-law-enforcement setting. Challenges remain in evaluating FSS program outcomes. Based on n = 211 participants’ demographic data and qualitative, open-ended written responses collected during an FSS event in a mid-sized Midwestern city, we analyze participants’ reasons for surrendering and anticipated outcomes of surrendering. Utilizing inductive thematic analysis of participants’ responses, we identify individual-level program outcomes that can be used for evaluating FSS. We additionally identify the intersection of codes amongst participant responses to demonstrate the inter-connectedness of FSS participants’ reasons …

Framing Legitimacy: A Qualitative Analysis Examining Local Print-Media Portrayals Of An Immigrant Family Detention Center In Texas, Layne Dittmann, Jurg Gerber

Qualitative Criminology (QC)

"Research suggests that media portrayals can impact the opinions of adults (Dizard, 2000). However, media reports on aspects of our criminal justice system, such as corrections, are an understudied topic (Marsh, 1989), especially regarding the use of private prisons. The current study examines a sample of 12 local Texas newspapers that reported on the T. Don Hutto Facility in Taylor, Texas, between January 1, 2000, and December 31, 2013. This facility was once a state prison for males and local jail inmates before being converted into an undocumented immigrant family detention facility and later into a detention center for undocumented …

“Explaining Similarities And Variations In Program Structures And Professional Roles In Midwestern Mental Health Courts” By Monte D. Staton And Arthur J. Lurigio, Monte D. Staton, Arthur J. Lurigio

Qualitative Criminology (QC)

"For nearly twenty years, legal and mental health professionals have created mental health courts (MHCs) for responding to the increasing numbers of criminally involved people with severe mental illnesses (PSMI) who are entering the criminal justice system. This article presents findings from qualitative analysis of survey and ethnographic data collected at nine MHCs established in a Midwestern state between 2004 and 2008, exploring how professionals who operated the MHCs organized the programs and conducted roles at the work sites. Findings revealed that professionals established very similar models of mental health court organization at each of the nine sites. The data …

Andrea S. Boyles, Race, Place, And Suburban Policing: Too Close For Comfort, Brian P. Schaefer

Qualitative Criminology (QC)

"The struggles of African Americans with police in urban environments are well documented in criminological and sociological research. Andrea Boyles in Race, Place, and Suburban Policing offers new perspectives by introducing readers to the relationship between African Americans and the police in Meacham Park, a suburban enclave of affluent Kirkwood, Missouri. The focus on suburbia depicts how race and place shapes interactions and sheds doubt that African Americans can escape the harms associated with living in low-income urban environments by relocating to the suburbs. Boyles spent two years conducting fieldwork and interviewed over thirty adults at length. Her findings provide …

Susan J. Terrio, Whose Child Am I? Unaccompanied, Undocumented Children In U.S. Immigration Custody, Francisco J. Alatorre

Qualitative Criminology (QC)

"Whose Child Am I? is by Susan Terrio, Professor of Anthropology at Georgetown and author of two other books about issues of juvenile delinquency. Focusing on the wretched and dangerous experiences of Latino youth desperately traveling to and reaching El Norte, and then experiencing detention and incarceration, Terrio interrogates the American dream and American ideals of inclusion, as both are seriously abused in this international transborder tragedy. Terrio conducts her inquiry into how undocumented children are sent north, how they survive, and what happens to them by relating the process chronologically. She describes the children finding their way “home” …

The American Bar Association's Criminal Justice Mental Health Standards: Revisions For The Twenty-First Century, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 1981, the American Bar Association ("ABA"), bolstered by a grant from the John D. and Catherine T. MacArthur Foundation, decided to develop standards for governing the involvement of persons with mental disabilities in the criminal justice system. To accomplish this task the ABA established six task forces, each focused on a different topic, and each composed of judges, prosecutors, defense attorneys, law professors, and mental health professionals well-known for their expertise about criminal mental health law. The result, promulgated in 1984 by the ABA's House of Delegates, was more than eighty black letter Criminal Justice Mental Health Standards, accompanied …

Crime, Morality, And Republicanism, Richard Dagger

Political Science Faculty Publications

One of the abiding concerns of the philosophy of law has been to establish the relationship between law and morality. Within the criminal law, this concern often takes the form of debates over legal moralism--that is, "the position that immorality is sufficient for criminalization" (Alexander 2003: 131). This paper approaches these debates from the perspective of the recently revived republican tradition in politics and law. Contrary to what is usually taken to be liberalism's hostility to legal moralism, and especially to attempts to promote virtue through the criminal law, the republican approach takes the promotion of virtue to be one …

Fighting Collateral Sanctions One Statute At A Time: Addressing The Inadequacy Of Child Endangerment Statutes And How They Affect The Employment Aspirations Of Criminal Offenders, Sarah Wetzel

Akron Law Review

In an age where one in four adult Americans has a criminal record, post-conviction relief measures and review of criminal statutes is on the rise. This Comment addresses the inadequacy of current child endangerment statutes around the country by providing examples of those which are too broad and result in convictions of well-meaning parents and those which are too narrow and allow other parents to harm their children without repercussion. It then places these statutes in the context of collateral sanctions that are imposed on individuals with child endangerment convictions, particularly those related to employment and professional licensing.

People With Secrets: Contesting, Constructing, And Resisting Women’S Claims About Sexualized Victimization, Rose Corrigan, Corey S. Shdaimah

Catholic University Law Review

What do sexual assault victims and women charged with prostitution have in common? Both are processed through a criminal justice system where legal actors assess their claims of victimization and either provide or deny resources and recognition in response to those claims. Ideal victim theory posits that not all victims’ claims are treated equally due to static factors such as personal characteristics or case facts. Professor Corrigan and Professor Shdaimah present the Arena of Intelligibility, an original analytical tool developed from their empirical data, to more effectively explain case outcomes for women affected by sexual crimes.

The Arena explains criminal …

"Cerd-Ain" Reform: Dismantling The School-To-Prison Pipeline Through More Thorough Coordination Of The Departments Of Justice And Education, Lisa A. Rich

Faculty Scholarship

In the last year of his presidency, President Barack Obama and his administration have undertaken many initiatives to ensure that formerly incarcerated individuals have more opportunities to successfully reenter society. At the same time, the administration has been working on education policy that closes the achievement gap and slows the endless flow of juveniles into the school-to-prison pipeline. While certainly laudable, there is much more that can be undertaken collaboratively among executive branch agencies to end the school-to-prison pipeline and the endless cycle of people re-entering the criminal justice system. This paper examines the rise of the school-to-prison pipeline through …

John M. Hagedorn, The Insane Chicago Way: The Daring Plan By Chicago Gangs To Create A Spanish Mafia, Thomas Barker

Qualitative Criminology (QC)

"In The Insane Chicago Way, Professor Hagedorn opines that the super street gangs in Chicago have fundamentally changed since the 1990s. He provides an “institutionalized history” of the rise and fall of the Spanish Growth and Development (SGD) alliance to document the fundamental changes in Chicago. He rightly concludes that the SGD is “almost completely unknown to the public, the police, the professors and even most gang members” (p. 1). This powerful SGD case study is supported by the author’s long history of gang study and his interviews with gang leaders and street gang members, and with organized crime—Chicago …

Editorial, Tom Holt

Qualitative Criminology (QC)

"Welcome to the first issue of the fourth volume of the Journal of Qualitative Criminal Justice & Criminology. This is my first issue as editor, and I am pleased to continue along the path established by Will Oliver. It has been both exciting and challenging to take the reins and transition into this role. Thankfully Will already had a great crop of articles prepared for this issue. In a way, you could argue this issue is a result of both of our efforts. To that end, this issue highlights the journal’s continued emphasis on high-quality qualitative scholarship. The first …

Mass Murder And The Mass Media: Understanding The Construction Of The Social Problem Of Mass Shootings In The Us, Jaclyn Schildkraut

Qualitative Criminology (QC)

"Nearly as soon as the first shot is fired in a mass shooting, the news media already are rushing to break coverage, the likes of which typically last days or, in the more extreme cases, weeks. Though mass shootings are rare in occurrence, the disproportionate amount of coverage they receive in the media leads the public to believe that they occur at a much more regular frequency than they do. In order to understand how the public comes to understand mass shooting events, however, one first must understand how the stories are constructed by the media. The present study takes …

Old Message In A New Bottle: Taking Gang Rivalries Online Through Rap Battle Music Videos On Youtube, Joseph D. Johnson, Natalie Schell-Busey

Qualitative Criminology (QC)

"The Internet is changing society, including criminal behavior. It has been shown that gangs are active online, but it is unclear how gangs are using the Internet. Most studies seem to conclude that gang members are not using the Internet instrumentally to commit or promote criminal behavior, but these same studies show that gang members use social media for flame wars— to insult and threaten one another. We argue that using social media in this way is actually an instrumental use of the Internet because it promotes violence. According to the code of the street, a diss requires a response, …

Jody Miller And Wilson R. Palacios, Editors, Qualitative Research In Criminology, Carl Root

Qualitative Criminology (QC)

"Qualitative Research in Criminology is Volume 20 in the series titled Advances in Criminological Theory edited by William S. Laufer and Freda Adler. The title of Miller and Palacios’ contribution brings to mind the saying “one of these things is not like the others.” In fact, they acknowledge as much on page three of the introduction, as they state, “For some readers, our strategy may beg the question, why does a volume oriented around methodology belong in a theoretical series?” Miller and Palacios give a brief answer to this question, but allow the seventeen chapters that comprise their volume …

Homeland Security In The Post-9/11 Era: Forced Compliance Along The Northern Border, Nancy E. Marion, Ronald Gelleny

Qualitative Criminology (QC)

"The border relationship between the U.S. and Canada has traditionally been very trusting, allowing for an ease of trade and travel. However, the terrorist attacks of 9/11 altered this comfortable association. Now, U.S. policy is geared toward protecting the homeland from illegal immigration and potential terrorist actions. In other words, for Americans, security concerns trump trade. At the same time, Canada remains concerned with maintaining an ease of trade and travel with the U.S. To do this, Canada has been forced to establish and implement increased security measures as outlined by U.S. officials, even though there is strong opposition from …

When The Watchers Are Watched: An Interpretive Phenomenological Analysis Of Body-Worn Cameras, David A. Makin

Qualitative Criminology (QC)

"This research explores the individual construction of the bodyworn camera (BWC) within what would be labeled as an average size police agency. Using a pre- and post-implementation qualitative design and leveraging interpretive phenomenological analysis as the analytical strategy, this research explores the nuanced reaction to this technological diffusion within the agency. Results reveal global themes spanning a continuum of negative and positive reactions to the diffusion, with an overwhelming acceptance of the device and individual construction of how best to use the device. While providing an initial lens of analysis for future researchers, the research includes considerable unanswered questions concerning …

Foreword: Innocent Until Proven Poor, Sara Zampierin

Michigan Journal of Race and Law

One of the core tenets of our criminal justice system is the presumption of innocence until proven guilty. As the title of the Symposium recognizes, we have allowed our justice system to ignore that presumption for people living in poverty in a variety of ways. Instead, it often inflicts additional and harsher punishment on individuals because of their poverty.

“One Of The Worst:” The School-To-Prison Pipeline In Richmond, Virginia, Cassie Powell

Law Student Publications

Virginia tops the nation in the rate of referrals of students to law enforcement, at three times the national average. Students with disabilities and children of color are far more likely to be referred. Some Richmond area school districts and local government leaders are taking steps to counteract this trend.

Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.'Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in …

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

Keynote Remarks, Vanita Gupta

Michigan Journal of Race and Law

In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the …

The Drug Court Paradigm, Jessica M. Eaglin

Articles by Maurer Faculty

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent …