Law Enforcement and Corrections Commons^™

Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor

Faculty Scholarship

This paper analyses changes in the legal protection of shareholder and creditor rights in 24 transition economies from 1990 to 1998. It documents differences in the initial conditions and a tendency towards convergence of formal legal rules as the result of extensive legal reforms. Convergence seems to be primarily the result of foreign technical assistance programs as well as of harmonisation requirements for countries wishing to join the European Union. The external supply of legal rules not withstanding, the pattern of legal reforms suggests that law reform has been primarily responsive, or lagging, rather than leading economic development. In comparison, …

Gang Loitering, The Court, And Some Realism About Police Patrol, Debra A. Livingston

Faculty Scholarship

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago's "gang loitering" ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer's authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After …

The Police-Ization Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

This essay will briefly review the background of the use of the armed forces in a police capacity, discuss the growth of that role in the I980s and 1990s, and forecast an even greater expansion into that role in the near future due to the emerging threat of "catastrophic terrorism." It will contend that this increased reliance on military resources for policing is not in the interest of either the armed forces or the public. Finally, it will make some observations with a view towards minimizing the dangers of police-ization of the military while ensuring the Nation's public safety.

Contesting Government's Financial Interest In Drug Cases, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, …

Police Reform And The Department Of Justice: An Essay On Accountability, Debra A. Livingston

Faculty Scholarship

In 1994, Congress promulgated a significant piece of legislation that may prove to have an extremely important impact on the operation of local police departments. Section 14141 of Title 42, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, prohibits governmental authorities or those acting on their behalf from engaging in "a pattern or practice of conduct by law enforcement officials" that deprives persons of "rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." Whenever the Attorney General has reasonable cause to believe that a violation has occurred, …

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their sentiments …

Lawyering Up, Susan Bandes, Jack M. Beermann

Faculty Scholarship

The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore …

Slashing And Burning Prisoners' Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Policing For Profit: The Drug War’S Hidden Economic Agenda, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In the following pages, we first describe in more detail how the Drug War’s financial largess has kept its soldiers in business. We then discuss the destructive impact of this economic regime, marshaling evidence to show that the corruption of law enforcement priorities and wholesale miscarriages of justice can be attributed to the operation of these incentives. Finally, we explore potential legal and legislative remedies through which law enforcement may regain its bearings.

Our investigation focuses on the economic underpinnings of current drug law enforcement policy. Drug policy also raises an extraordinarily broad range of moral, health, and criminological concerns, …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston

Faculty Scholarship

The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, "The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically …

Police Patrol, Judicial Integrity, And The Limits Of Judicial Control, Debra A. Livingston

Faculty Scholarship

I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police …

Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston

Faculty Scholarship

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an …

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

(Dis)Assembling Rights Of Women Workers Along The Global Assembly Line: Human Rights And The Garment Industry Symposium: Political Lawyering: Conversations On Progressive Social Change, Laura Ho, Catherine Powell, Leti Volpp

Faculty Scholarship

Some observers would like to explain away sweatshops as immigrants exploiting other immigrants, as "cultural, or as the importation of a form of exploitation that normally does not happen here but occurs elsewhere, in the "Third World." While the public was shocked by the discovery at El Monte, garment workers and garment worker advocates have for years been describing abuses in the garment industry and have ascribed responsibility for such abuses to manufacturers and retailers who control the industry. Sweatshops, like the one in El Monte, are a home-grown problem with peculiarly American roots. Since the inception of the garment …

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …

Federal Use Of State Institutions In The Administration Of Criminal Justice, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

Lawyers At The Prison Gates: Organizational Structure And Corrections Advocacy, Susan Sturm

Faculty Scholarship

The rise of the public interest law movement ushered in an era of intense debate over the best way to provide legal representation to those unable to afford private counsel. This debate has involved two related dimensions of public interest representation. First, advocates and observers of public interest practice disagree over the proper role of lawyers acting on behalf of poor and underrepresented clients. They offer competing visions of representation spanning a continuum, from providing equal access to the courts for as many poor people as possible, to attacking the causes and effects of poverty and powerlessness.

The second dimension …

Reel Time/Real Justice, Kimberlé W. Crenshaw

Faculty Scholarship

Like the Anita Hill/Clarence Thomas hearings a few months before, the Rodney King beating, the acquittal of the Los Angeles police officers who "restrained" him and the subsequent civil unrest in Los Angeles flashed Race across the national consciousness and the gaze of American culture momentarily froze there. Pieces of everyday racial dynamics briefly seemed clear, then faded from view, replaced by presidential politics and natural disasters.

This Essay examines in more depth what was exposed during the momentary national focus on Rodney King. Two main events – the acquittal of the police officers who beat King and the civil …

Legacy And Future Of Corrections Litigation, Susan P. Sturm

Faculty Scholarship

This Article attempts to provide a framework for assessing the legacy and future of public interest advocacy in one particular area – corrections. It documents a shift from a test case to an implementation model of advocacy, and urges the development of effective remedial strategies as a method of linking litigation to a broader strategy of correctional advocacy.

I have chosen to focus on this particular institutional context for several reasons. On a pragmatic level, the Edna McConnell Clark Foundation, which for the last twenty years has been the primary source of funding for corrections litigation by private, nonprofit organizations, …

Justice For Rodney King, Scott C. Burrell, Alan R. Dial, Thomas W. Mitchell

Faculty Scholarship

May 1992 letter from three Howard University School of Law students to President George H.W. Bush advocating that the United States Department of Justice invoke the Petite Policy to initiate a criminal action against the Los Angeles Police Department police officers responsible for brutally beating Rodney King despite the fact that these offers had been acquitted in a California state court. The letter, which was read in front of the White House by Thomas Mitchell to hundreds of people who had gathered to urge the federal government to take action, sets forth a clear legal basis to permit the Justice …

Electronic Surveillance, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Resolving The Remedial Dilemma: Strategies Of Judicial Intervention In Prisons, Susan P. Sturm

Faculty Scholarship

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called "ordinary" or "extraordinary," the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to "resolve a traditional private dispute.

Courts involved in institutional reform …

"Carrot And Stick" Sentencing: Structuring Incentives For Organizational Defendants, John C. Coffee Jr.

Faculty Scholarship

The new "Draft Guidelines for Organizational Defendants" released by the U.S. Sentencing Commission on October 25, 1990, explicitly adopt a "'carrot and stick' approach" to sentencing. While the boldly instrumental use made of sentencing penalties and credits in these guidelines will trouble some, the larger question is whether the Commission's social engineering will work. Two issues stand out: First, is the Commission's carrot mightier than its stick? At first glance, this may seem a surprising question because the "stick" in the Commission's guidelines seemingly packs a Ruthian wallop: fines under the draft guidelines are based on a multiple of the …

Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson

Faculty Scholarship

In Wisconsin, trial courts have discretion to modify a defendant's criminal sentence if the defendant introduces a "new factor." Published Wisconsin case law gives little guidance on what constitutes a new factor. The Wisconsin Supreme Court has declined to find a new factor present in every case it has published since defining "new factor" in 1978. Because of ambiguous and conflicting rulings, the standards for both prongs of the new factor definition remain unclear. This Comment attempts to shed light on the new factor requirement for sentence modification by examining Wisconsin trial court decisions on a limited sample of sentence …

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

The Future Of Sentencing Reform: Emerging Legal Issues In The Individualization Of Justice, John C. Coffee Jr.

Faculty Scholarship

The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to "individualize" the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our Sentencing Reform system of meaningful procedures for the appellate review …