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Full-Text Articles in Legal Theory
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
All Faculty Scholarship
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …
African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle
African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle
Department of Justice Studies Faculty Scholarship and Creative Works
Understandings of punishment within the criminological enterprise have failed to capture the nuances associated with experiencing punishment. Moreover, mainstream academic discourses are inherently anachronistic in their conclusions on punishment, thus leaving significant gaps to be filled. One such gap is that of racialized history. This article attempts to make sense of punishment discourses (past and present) by situating them in their proper context. We argue that punishment, in particular for Blacks, is ideological and longstanding. Moreover, we posit that the prolonged punishment of Blacks is hyper manifested in contemporary society via neoliberal logic that has increasingly disabled race as a …
Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan
Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan
All Faculty Scholarship
In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …
The Utility Of Desert, Paul H. Robinson, John M. Darley
The Utility Of Desert, Paul H. Robinson, John M. Darley
All Faculty Scholarship
The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real …