Social and Behavioral Sciences Commons^™

The Public Voice Of The Defender, Russell M. Gold, Kay L. Levine

Faculty Articles

For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations—all of which inflict severe harm on defendants and their …

The Market For Corporate Criminals, Andrew K. Jennings

Faculty Articles

This Article identifies problems and opportunities at the intersection of mergers and acquisitions (M&A) and corporate crime and compliance. In M&A, criminal successor liability is of particular importance, because it is quantitatively less predictable and qualitatively more threatening to buyers than successor liability in tort or contract. Private successor liability requires a buyer to bear bounded economic costs, which can in turn be reallocated to sellers via the contracting process. Criminal successor liability, however, threatens a buyer with non-indemnifiable and potentially ruinous punishment for another firm’s wrongful acts.

This threat may inhibit the marketability of businesses that have criminal exposure, …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Making Deflection The New Diversion For Drug Offenders, Kay L. Levine, Joshua C. Hinkle, Elizabeth Griffiths

Faculty Articles

The argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in …

Career Motivations Of State Prosecutors, Ronald F. Wright, Kay L. Levine

Faculty Articles

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board. Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office. When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, …

The Attrition Of Rights Under Parole, Tonja Jacobi, Song Richardson, Gregory Barr

Faculty Articles

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and …

The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine

Faculty Articles

This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …

The Law Is Not The Case: Incorporating Empirical Methods Into The Culture Of Case Analysis, Kay L. Levine

Faculty Articles

While I consider case analysis in the context of cultural defense jurisprudence, this Essay should be regarded as a case study of a more endemic problem in legal scholarship. In tackling such an area, my goal is not to overthrow centuries of legal analysis, but rather to explore how we, as legal scholars, might use social science techniques to more systematically investigate, document, analyze, and predict the state of a particular comer of the legal universe.

The argument proceeds in two parts. Part II considers empirical approaches to the question raised by Lee: how might we ascertain the relationship between …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Faculty Articles

Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

Indeed, deterrence is the central basis that many policymakers and courts cite for capital punishment. For example, President Bush believes that capital punishment deters crime and that deterrence is the only valid reason for capital punishment. Likewise, the Supreme …

The New Prosecution, Kay L. Levine

Faculty Articles

This Article proceeds as follows. Part I introduces the Statutory Rape Vertical Prosecution Program that took shape in California in the mid-1990s. In addition to explaining how this program emerged and its central features, I highlight the aspects of the SRVPP that distinguish California statutory rape prosecutors from the traditional image of the local prosecutor in the United States. Part II offers some background on the new prosecution and the problem-oriented approach to criminal justice, explaining how this model differs from the traditional crime-based or case-based method of criminal justice work. In Part III, I use empirical data derived from …

In Slime And Darkness: The Metaphor Of Filth In Criminal Justice, Martha Grace Duncan

Faculty Articles

An article such as this one, which seeks to examine the labyrinthine chains of meanings that we associate with illegal behavior, cries out for an interdisciplinary approach. Specifically, it demands a source that can reveal our unconscious as well as our conscious associations. Such a source is classical literature -- works of fiction that, by virtue of being read and loved through centuries and across continents, have proven their capacity to strike a responsive chord in their readers. Therefore, in Part II of this Article, I employ the classics, supplemented by occasional examples from contemporary fiction, history, and theology, to …

"A Strange Liking": Our Admiration For Criminals, Martha Grace Duncan

Faculty Articles

This article explores noncriminals' admiration for the lawbreaker. Drawing on literature, films, history, and psychoanalysis, the article seeks to delineate and explain this paradox. Each part of the article adopts a different approach to the subject of admiration for criminals. Part II, "Reluctant Admiration," sets the stage by presenting evidence that such admiration, and conflict over it, are pervasive. Parts III and IV present two quite different strategies that noncriminals employ to cope with their inner conflict over criminality. Thus, Part III, "Rationalized Admiration," depicts noncriminals who express undisguised enjoyment in, and reverence for, criminals. These noncriminals justify their attraction …