Law Enforcement and Corrections Commons^™

The Tyranny Of Small Things, Yxta Maya Murray

Michigan Journal of Race and Law

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will …

How To Change The Philosophy And Practice Of Probation And Supervised Release: Data Analytics, Cost Control, Focus On Reentry, And A Clear Mission, Nora V. Demleitner

Scholarly Articles

None available.

The Prosecutor's Ethical Duty To End Mass Incarceration, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Double Counting: The Appropriate Application Of The Vulnerable Victim Enhancement For Child Sex Offenders, Amy Yoon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock

Journal of Law and Policy

This article examines federal sentencing reform and embraces the principle of uncertainty in this process. In order to properly reapportion federal criminal sentencing laws, reformers must account for the impracticality of determining appropriate incarceration lengths at sentencing. Thus, this article proposes an alternative federal sentencing model that includes a sentencing effectiveness assessment tool to help lawmakers implement rational sentences that appropriately punish offenders, prepare them to successfully reenter society, and reduce recidivism rates. Modern sentencing reform should adopt constant review and evaluation of sentencing to measure effectiveness and ensure that appropriate sentences are implemented to avoid the pitfalls of an …

Values And Assumptions In Criminal Adjudication, Benjamin Levin

Publications

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account …

The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes

Loyola of Los Angeles Law Review

No abstract provided.

Resentencing In The Shadow Of Johnson V. United States, Leah Litman

Articles

On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …

Flawed Coalitions And The Politics Of Crime, David Jaros

All Faculty Scholarship

Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of federal sentencing practice and usher in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative sentencing reformers. The guideline regime established by the Sentencing Reform Act ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s former liberal supporters.

Researchers have shown that a particular cognitive bias — cultural cognition — can explain why intense partisan …

Sentence Creep: Increasing Penalties In Michigan And The Need For Sentencing Reform, Anne Yantus

University of Michigan Journal of Law Reform

The governor and several legislators have requested review of Michigan’s sentencing practices with an eye toward sentence reform. Michigan leads the country in the average length of prison stay, and by internal comparisons the average minimum sentence has nearly doubled in the last decade. This Article explores cumulative increases to criminal penalties over the last several decades as reflected in amendments to the sentencing guidelines, increased maximum sentences, harsh mandatory minimum terms, increased authority for consecutive sentencing, wide sentencing discretion for habitual and repeat drug offenders, and tough parole practices and policies. The reality for legislators is that it is …

The Unreviewable Irredeemable Child: Why The District Of Columbia Needs Reverse Waiver, Jamie Stevens

University of the District of Columbia Law Review

In 2005 the U.S. Department of Justice estimated that adult criminal courts prosecuted 23,000 cases involving defendants under the age of eighteen nationwide. 2 This means that those defendants faced conviction and sentencing in adult courts. Transfer of those under eighteen into adult criminal court has become the states' first line of defense in the fight against youth crime. However, recent Supreme Court decisions have cast doubt on the wisdom, and even the constitutionality of that approach. Roper v. Simmons held that the Eighth Amendment prohibits the death penalty for anyone under eighteen years of age. 3 Graham v. Florida …

From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric

Michigan Journal of Race and Law

Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …

Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum

Vanderbilt Law School Faculty Publications

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Publications

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

Articles

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type …

What The Sentencing Commission Ought To Be Doing Reducing Mass Incarceration, Lynn Adelman

Michigan Journal of Race and Law

Beginning in the 1970s, the United States embarked on a shift in its penal policies, tripling the percentage of convicted felons sentenced to confinement and doubling the length of their sentences. This shift included a dramatic increase in the prosecution and incarceration of drug offenders. As a result of its move toward long prison sentences, the United States now incarcerates so many people that it has become an outlier; this is not just among developed democracies, but among all nations, including highly punitive states such as Russia and South Africa, and also in comparison to the United States' own long-standing …

The Punishment Need Not Fit The Crime: Harmelin V. Michigan And The Eigth Amendment, Scott K. Petersen

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally, these laws illustrate a fundamental …

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

All Faculty Scholarship

The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

All Faculty Scholarship

This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …

Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.

University of Michigan Journal of Law Reform

Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Sentencing, Drugs, And Prisons: A Lesson From Ohio, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Prison overcrowding has become a familiar story. Current data shows that more than 1 in 100 adults in America—over 2 million people—are incarcerated, earning the United States the distinction of having the highest incarceration rate in the world. It should not be a surprise, therefore, that state and federal prisons are reaching and exceeding capacity. Nor should it be a shock that drug offenders take up many of the beds in those overcapacity prisons. Relative to other crimes, drug sentencing in the United States has been increasingly harsh since the 1970s, and the prison population is feeling the effects …

'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham

All Faculty Scholarship

Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Turning The Corner On Mass Incarceration?, David Cole

Georgetown Law Faculty Publications and Other Works

For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision—in prison or jail or on probation or parole—fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for …

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.