Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement,
2015
Columbia Law School
Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor
Faculty Scholarship
The Housing Part of the Civil Court was established by statute in Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were …
Introduction: War Measures And The Repression Of Radicalism, 1914-1939,
2015
Department of Law, Carleton University
Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie
Articles & Book Chapters
This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.
Why Instrumentalism Matters,
2015
Benjamin N. Cardozo School of Law
Why Instrumentalism Matters, Kyron J. Huigens
Articles
Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.
Culpability And Modern Crime,
2015
Duke Law School
Culpability And Modern Crime, Samuel W. Buell
Faculty Scholarship
Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …
The Effect Of Statutory Rape Laws On Teen Birth Rates,
2015
Duke Law School
The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding
Faculty Scholarship
Policymakers have often been explicit in expanding statutory rape laws to reduce teenage pregnancies and live births by teenage mothers, often with the goal of reducing associated welfare outlays. In this paper, we explore whether expansions in such laws are indeed associated with reductions in teen birth rates. In order to codify statutory-rape-law expansions, we use a national micro-level sample of sexual encounters to simulate the degree to which such encounters generally implicate the relevant laws. By codifying statutory-rape laws in terms of their potential reach into sexual encounters, as opposed to using crude binary treatment variables, this simulation approach …
The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement,
2015
Northwestern Pritzker School of Law
The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel
Journal of Criminal Law and Criminology
No abstract provided.
Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care,
2015
Northwestern Pritzker School of Law
Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care, Sarah Halbach
Journal of Criminal Law and Criminology
This Comment looks closely at the reasoning behind two recent federal court opinions granting transgender prisoners access to hormone therapy and sex-reassignment surgery. Although both opinions were decided under the Eighth Amendment’s ban on cruel and unusual punishment, which does not expressly prohibit discrimination based on gender identity, a careful look at the courts’ reasoning suggests that they were influenced by the apparent discrimination against the transgender plaintiffs. This Comment argues that future transgender prisoners may be able to develop an antidiscrimination doctrine within the Eighth Amendment by framing their Eighth Amendment medical claims in terms of discrimination based on …
Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform,
2015
Northwestern Pritzker School of Law
Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform, Cristina Law
Journal of Criminal Law and Criminology
Prisoners face many barriers when petitioning for federal habeas corpus relief, especially when asserting ineffective assistance of trial counsel claims. The Supreme Court’s decision in Trevino v. Thaler attempted to lower these barriers by carving out a narrow exception to the procedural default rule. Although a step in the right direction, this narrow exception fell short of meaningful habeas corpus reform. This Comment argues that although the Supreme Court’s decision in Trevino appears to guarantee habeas corpus petitioners the ability to raise ineffective assistance of trial counsel claims in federal court, it is unlikely to provide prisoners meaningful opportunities to …
Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts,
2015
Northwestern Pritzker School of Law
Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin
Journal of Criminal Law and Criminology
Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …
Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control,
2015
Northwestern Pritzker School of Law
Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control, Joshua D. Freilich, Graeme R. Newman
Journal of Criminal Law and Criminology
This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal …
Examining The Sources Of Correctional Officer Legitimacy,
2015
Northwestern Pritzker School of Law
Examining The Sources Of Correctional Officer Legitimacy, Benjamin Steiner, John Wooldredge
Journal of Criminal Law and Criminology
Correctional officer legitimacy has been linked to prison safety and order, and it may also be relevant for inmate well-being and facilitating behavioral change. Yet few studies have examined the sources of correctional officer legitimacy. Findings from analyses of survey data collected from over 5,500 inmates housed throughout forty-six facilities in Ohio and Kentucky revealed that inmates’ perceptions of the treatment they received during their most recent encounters with correctional officers (procedural justice) impacted the strength of their beliefs regarding the legitimacy of those officers. The analyses also revealed that background factors such as inmates’ age and race were relevant …
Sentencing And Interbranch Dialogue,
2015
Northwestern Pritzker School of Law
Sentencing And Interbranch Dialogue, Eric S. Fish
Journal of Criminal Law and Criminology
American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this …
Modifying Unjust Sentences,
2015
University of Florida Levin College of Law
Modifying Unjust Sentences, E. Lea Johnston
UF Law Faculty Publications
The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence …
The Politics Of The Bail System: What's The Price For Freedom.,
2015
St. Mary's University
The Politics Of The Bail System: What's The Price For Freedom., Lydia D. Johnson
The Scholar: St. Mary's Law Review on Race and Social Justice
The only factor determining the release of a defendant from custody before his trial date is money. The government should eliminate the current bail system and replace it with mandated pre-trial release unless the state can prove the defendant to be a flight risk or a danger to society. This bail system has an adverse economic impact on minorities and on poor communities. Some states have used their constitutions to implement pre-trial release. Texas has four constitutional provisions which would permit similar implementations. However, clashing political ideologies and institutional alliances continue to prevent the construction of a workable solution. Dismantling …
Maternal And Paternal Imprisonment And Children's Social Exclusion In Young Adulthood,
2015
Northwestern Pritzker School of Law
Maternal And Paternal Imprisonment And Children's Social Exclusion In Young Adulthood, Holly Foster, John Hagan
Journal of Criminal Law and Criminology
The United States has entered its fourth decade of high imprisonment levels. It is now possible to assess the impact of parental imprisonment on children who have completed the transition to adulthood. We elaborate the role of parental incarceration from a life course perspective on intergenerational social exclusion in young adulthood. The National Longitudinal Study of Adolescent Health [Add Health] representatively sampled the historically unique national cohort born in the 1980s, during the onset of mass incarceration. Four waves of the Add Health survey provide a valuable moving window on incarcerated parents and the transitions of their children from adolescence, …
Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die,
2015
Northwestern Pritzker School of Law
Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die, Meredith Martin Rountree
Journal of Criminal Law and Criminology
In the United States, different people have different rights to die. This Article traces the origins of death-sentenced prisoners’ ability to enlist assistance in dying and compares it to the considerably more circumscribed right held by people with serious illness. It uses empirical research on “volunteers,” death-sentenced prisoners who sought execution, to argue that the legal standard for adjudicating their requests to hasten execution should be changed. Empirical evidence suggests many of the concerns governing the regulation of assisted dying in the medical context are present in the death row case. This Article therefore urges courts to use a balancing …
Correctional Education Can Make A Greater Impact On Recidivism By Supporting Adult Inmates With Learning Disabilities,
2015
Northwestern Pritzker School of Law
Correctional Education Can Make A Greater Impact On Recidivism By Supporting Adult Inmates With Learning Disabilities, Angela Koo
Journal of Criminal Law and Criminology
This Comment brings attention to a group that is overlooked within our prisons—adult inmates with learning disabilities. These inmates currently face challenges in receiving appropriate educational programming. Recognizing that several studies support the proposition that education reduces recidivism, this Comment argues that correctional education programs must make reforms to accommodate adult inmates with learning disabilities in order for education to fully impact recidivism rates.
Reasonable Doubt And Moral Elements,
2015
Northwestern Pritzker School of Law
Reasonable Doubt And Moral Elements, Youngjae Lee
Journal of Criminal Law and Criminology
The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …
Swift, Certain, And Fair Punishment: 24/7 Sobriety And Hope: Creative Approaches To Alcohol- And Illicit Drug-Using Offenders,
2015
Northwestern Pritzker School of Law
Swift, Certain, And Fair Punishment: 24/7 Sobriety And Hope: Creative Approaches To Alcohol- And Illicit Drug-Using Offenders, Paul J. Larkin Jr.
Journal of Criminal Law and Criminology
Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs—the 24/7 Sobriety program in South Dakota and Hawaii’s Opportunity Probation with Enforcement—subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and …
To Be Judged By Twelve Or Carried By Six? Quasi-Involuntariness And The Criminal Prosecution Of Service Members For The Use Of Force In Combat - A Grunt's Perspective,
2015
Northwestern Pritzker School of Law
To Be Judged By Twelve Or Carried By Six? Quasi-Involuntariness And The Criminal Prosecution Of Service Members For The Use Of Force In Combat - A Grunt's Perspective, Lupe Laguna
Journal of Criminal Law and Criminology
Post-9/11 conflicts have altered the way that the United States of America and her allies fight wars. Over the last ten years military commanders have embraced counterinsurgency doctrine as the path to victory in the War on Terror. As they have done so, commanders have been faced with the difficult task of balancing the need to protect local civilian populations with the need to proactively target insurgent fighters. To accomplish this mission, the military has adopted rules of engagement that allow a service member to engage a target when he or she perceives that the target exhibits “hostile intent.” The …
