Criminal Law Commons^™

The Impact Of Incarceration On The Risk Of Violent Recidivism, Jennifer E. Copp

Marquette Law Review

Whether incarceration heightens an individual’s likelihood of recidivating is at the center of prison policy discussions. Yet rigorous empirical studies on the nature of the incarceration—recidivism link are limited. As a whole, existing research suggests that the effect of imprisonment, relative to noncustodial sanctions, is either null or slightly criminogenic. These findings call into question the ability of prisons to exert a specific deterrent effect. They also suggest that prisons are failing to address the underlying causes of recidivism among inmate populations. An important consideration, however, is the extent to which the effects of imprisonment are heterogeneous. The current discussion …

Retribution As Ancient Artifact And Modern Malady, Molly J. Walker Wilson

Lewis & Clark Law Review

One of the oldest and most entrenched goals of punishment is retribution, which is the idea that inflicting pain on someone who has committed a wrong is a worthwhile goal, regardless of any other benefits or harms that may result. Retribution has been the justification for increasingly punitive policies in the United States, the effect of which has decimated communities of color, strapped taxpayers with huge associated costs, and increased crime rates. It is difficult to understand why we perpetuate harmful policies based on “just deserts” until we consider that the foundation of these policies is moral outrage—a powerful, automatic, …

Criminal Law As Public Ordering, Alice Ristroph

Faculty Scholarship

No abstract provided.

Rethinking The Relationship Between Punishment And Policing, Kiel Brennan-Marquez

Faculty Articles and Papers

Responding to Gabriel Mendlow, Why Is it Wrong To Punish Thought?, 127 YALE L. J. 2342 (2018).

Prior Discipline And Performance Among Police Officers: Does Organizational Fairness Matter?, Richard Helfers, Paul D. Reynolds, Jon Maskaly

Criminal Justice Faculty Publications and Presentations

Using a survey of police officers (n=1080) in a southern state of the USA, this study examines how overall performance is influenced by organizational fairness and prior disciplinary actions. In particular, this study focuses on the relationship between organizational treatment and officers’ self-acknowledged engagement in more innocuous forms of negative workrelated behaviors, general task performance, and extra-role behaviors. Results suggest prior disciplinary actions and organizational treatment are related to officer performance. Our findings highlight fair treatment’s relationship to enhanced prosocial activities and reduced negative work behaviors. Of importance to police administrators, police officers’ fairness perceptions of the police organization appear …

Empathy And Worthiness: The Modern Victims' Rights Movement And The Growth Of Mass Incarceration, Samantha Dresner

Scripps Senior Theses

The Victims' Rights Movement emerged in the 1970s and 1980s, at the same time as the War on Drugs and War on Crime were driving mass incarceration at unprecedented levels. This paper examines the historical roots of the victims' rights movement and its evolution from grassroots organizing into a tool of state power. It interrogates the meaning of "worthy" victims, and looks into the landmark Supreme Court case Payne v. Tennessee as an example of victim impact evidence being used to support the state project of the death penalty.

Individualized Proportionality And The Experience Of Punishment: An Emergent Paradigm For Canadian Sentencing?, Benjamin Berger

All Papers

Drawn from a case in which the Supreme Court of Canada grappled with the signal societal trauma wrought by the operation of the criminal justice system — the travesty of Indigenous over-representation in Canadian prisons — the epigraph to this chapter points to the ethical heart of a distinctive and important development in Canadian sentencing law. It involves an approach that has already disrupted certain elements of contemporary sentencing practice, and it is one that, depending on how sentencing judges embrace it, may open up new futures in Canadian sentencing. This development is the emergence of individualized proportionality as the …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Faculty Publications

This Article addresses the role that racial disparities— specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Mary Anne Franks, Danielle Citron

Articles

No abstract provided.

Convictions As Guilt, Anna Roberts

Faculty Publications

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …

Real Insider Trading, Michael A. Perino

Faculty Publications

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. The debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This Article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess …

Categorical Nonuniformity, Sheldon Evans

Faculty Publications

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

Selective Incompatibilism, Free Will, And The (Limited) Role Of Retribution In Punishment Theory, Luis E. Chiesa

Journal Articles

No abstract provided.

Beyond Policing, India Thusi

Books & Book Chapters by Maurer Faculty

We all deserve to live in communities where we feel safe

And true community safety means feeling safe from violence by the state, which includes the police. Social inequity has systematically and institutionally permeated our country since its founding, becoming more visible at various times in our history. We are now living in one of those moments of tremendous clarity, and it calls on us to look deeply at the efficacy of the reforms and narratives which preceded it . The deadly consequences of political decisions that create health disparities are now a wound that cannot be unseen as the …

Immigration And Crime Across Southern Us Border: The Effect Of Latino Immigration On Violent Crime, Matthew Hohman

Williams Honors College, Honors Research Projects

In the United States, most lay citizens could voice an opinion on the effect of immigration in the United States. However, these opinions are generally only focused on Latino immigration entering the country across its Southern border from Mexico and Caribbean countries, such as Cuba and Haiti. Increased media coverage on this topic in recent decades has fueled this debate and made it a center stage topic in political agendas. This study aims to shed light on this issue by researching the true effect of Latino immigration, as well as total immigration, across the United States’s Southern Border. To account …

Can The Pursuit Of Truth Reconcile With The Principle Of Minimizing False Convictions?, Doron Menashe

Cardozo Journal of Conflict Resolution

No abstract provided.

Arguing The Algorithm: Pretrial Risk Assessment And The Zealous Defender, Julian Adler, Sarah Picard, Caitlin Flood

Cardozo Journal of Conflict Resolution

This article examines the growing use of algorithmic pretrial risk assessment tools in the United States as a response to the systemic inequities of cash bail and mass incarceration. While proponents argue that these tools offer objective, data-driven alternatives to judicial discretion, critics highlight their potential to reinforce racial and economic disparities. Amid this contentious debate, the authors call attention to the underexplored role of public defenders in mitigating the harms—and maximizing the decarcerative potential—of risk assessment algorithms. Drawing on examples from New York and New Jersey, the article outlines four key strategies for defenders: demanding transparency in algorithm design, …

Arbitrating With The Mafia: Why Civil Rico Statutes Are Improperly Used And How Class Action Arbitration May Provide Just Compensation For Forgotten Victims, Max Steinberg

Cardozo Journal of Conflict Resolution

From the nineteenth century onward, the United States has been overwhelmed by the rise of organized crime. For generations, criminal organizations have "infiltrated the social and economic fabric" of society and committed heinous crimes in almost every way imaginable. For decades, pop culture and Hollywood have been infatuated with criminal organizations. Movies, television shows, books, and podcasts have portrayed these organizations as interesting and complex entities. In most cinematic programs, the leaders of these mob organizations are the protagonists. Hollywood may portray fictional mob bosses as such, but in reality, their organizations often contain ruthless murderers. What seems to get …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

Communicating Punishment, Marah Stith Mcleod

Journal Articles

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state's reasons for imposing a death sentence may not be executed. Outside of capital punishment, the answer is still open. This Article begins to fill that gap, focusing on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their …

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Faculty Scholarship

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

Multilayered Criminal (F)Laws, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Media In Flux: Does Consolidation Promote The Public Interest?, Simone A. Dvoskin

Cardozo Arts & Entertainment Law Journal

The note examines the transformative impact of digital platforms on traditional media and the legal challenges arising from this shift, advocating for updated regulations to ensure accessibility, fairness, and public interest. It argues that the rapid evolution of technology has outpaced regulatory frameworks, necessitating reforms to address media consolidation, accessibility for individuals with disabilities, and the role of the FCC in overseeing new media platforms.

'Terroristic Threats' And Covid-19: A Guide For The Perplexed, Chad Flanders, Courtney Federico, Eric Harmon, Lucas Klein

All Faculty Scholarship

The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars’ worth of damages to businesses. Those who have been caught doing this — or have filmed themselves doing it — have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes given their long history and …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Presidential Crimes Matter, Julian A. Cook

Scholarly Works

The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

The Concept Of Criminal Law, Sandra Mayson

Scholarly Works

What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique. This Essay argues that Antony Duff’s The Realm of Criminal …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …