The United States federal government should enact substantial criminal justice reform in the United States in one or more of the following: forensic science, policing, sentencing
Websites — Liberal
Reforming Expansive Crime Control & Sentencing Legislation in an Era of Mass Incarceration: a National and Cross-national Study (Fall 2019). This article is an excellent overview of all of the major federal laws related to criminal sentencing. It criticizes those laws and argues the US should adopt a restorative justice approach that is similar to Germany and the Netherlands: Germany has an estimated seventy-six per hundred thousand residents in prison. The Netherlands has about sixty-one per hundred thousand residents.120 The United States currently has over sixty-five per hundred thousand residents in prison…Retribution and vengeance imposed on offenders by means of decades of incarceration have proven to be largely inconsequential in reducing crime, rehabilitating offenders, and benefitting the victims of violent crime. If the United States were to divert from its focus on retribution for the victim, as Germany does, and focus on re-socializing the offender, crime would be reduced without the costs that are currently being incurred—both in terms of money and human life. When applied to non-violent crimes, such as drug offenses, incarceration punishes the offender and the victim at the expense of the loss of a human life which, with proper rehabilitation may never reoffend—a philosophy embraced by the Netherlands. The jail-alternative sanctions which are widely used in Germany and the Netherlands may achieve the reduction in mass incarceration that the United States desperately needs to see. Although it may be impossible to predict how reducing the use of jails and prisons as a first response to criminal convictions will affect the rate of crime in the United States, we know the current system is not working and that other nations have utilized distinct models, under which they have not become more exposed to violent criminals and ballooning prison populations.
An Intellectual History of Mass Incarceration (2019). There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects. For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing. This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law. The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents. The United States is focused on combating crime via incarceration, embracing a retributivist philosophy of punishment, the basic principles underlying the German and Dutch corrections systems are more restorative in nature with a focus on resocialization and rehabilitation of the offender.122 The German criminal code is less concerned with the impact of the crime on the victim and retribution but is aimed more at reeducation and rehabilitation of offenders.123 The Netherlands is significantly more tolerant of drug offenses than the U.S. is. Both nations utilize jail-alternative sanctions as the primary form of criminal responsibility and reserve imprisonment as a last resort.124 All of these elements, if implemented in the United States, would serve the United States’ criminal justice system well, as this section will discuss.
The End of an Era? Understanding the Contradictions of Criminal Justice Reform, 664 Annals Am. Acad. Pol. & Soc. Sci. 238 (2016). Gated/Requires payment
Shon Hopwood, Clarity in Criminal Law, 54 Am. Crim. L. Rev. 695, 702 (2017) (describing “Congress’s penchant for passing too many criminal laws carrying sentences that are too long”)
Allegra M. McLeod, Beyond the Carceral State, 95 Tex. L. Rev. 651, 664 (2017) (reviewing Gottschalk, supra note 16); Takei, supra note 15, at 127 (“The left and the right, however, each come to this alliance with distinct and, ultimately, incompatible interests. Recently, the progressive advocacy community has begun to seriously grapple with the limits of the left-right alliance. This includes differences over whether and how to address policing practices and racial disparities in prosecutions, suspicions that conservatives are using decarceration as a Trojan Horse to protect white-collar criminals, and disagreement about whether decarceration should be accompanied by increased societal investment in housing, employment opportunities, health care, and other social services.”)
The President’s Role in Advancing Criminal Justice Reform (2007) This article by Barak Obama outlines different things the President can do to support criminal justice reform.
Mass Incarceration: The Obstruction of Judges (2019). The plight of mass incarceration has forced opposing policy makers at the federal and state levels to address specific problems like prison overcrowding, albeit for varying philosophical reasons. Conservative-leaning policy makers explain the need for criminal justice reform primarily in terms of economic hardships.41 Many progressive or liberal-leaning policy makers point to social injuries caused by mass incarceration.42 However, it is a generally accepted premise across the political spectrum that the current rates of mass incarceration are fiscally unsustainable. In other words, “the public doesn’t want to build more prisons, [and the] legislature doesn’t have money to build prisons.” As a general premise, it can be concluded from this study that legislative mandates and institutional features may affect judicial discretion in sentencing. The conclusion relates directly to the widely divergent incarceration rates in Alabama and Massachusetts. The study revealed variations in attitudes, practices and policies that judges as actors in the criminal justice system believe to be obstructive to efforts aimed at reducing incarcerations rates. Judges perceive themselves as intermediaries between the criminal justice system and the communities to which most offenders will be returned. Therefore, any genuine effort to effectively reform the criminal justice system and reduce prison populations must include substantive involvement of state judges. Overcrowded prisons have necessitated reform of the criminal justice system. While this study centered on surface level political mandates and institutional features, the study of state judges as participants in the criminal justice system is vastly unchartered territory. Further study of these key actors in the criminal justice system is ripe for original contribution to the literature, and perhaps a missing consideration in the criminal justice and mass incarceration debate.
Vincent Chiao, Mass Incarceration and the Theory of Punishment, 11 Crim. L. & Phil. 431 (2017);
See, e.g., Guyora Binder & Ben Notterman, Penal Incapacitation: A Situationist Critique, 54 Am. Crim. L. Rev. 1, 3 (2017);
Bruce Western & Christopher Muller, Mass Incarceration, Macrosociology, and the Poor, 647 Annals Am. Acad. Pol. & Soc. Sci. 166, 168 (2013) (“[I]ncarceration must be so extensive and concentrated that it imprisons not just the individual but the group.”). 80. Jonathan Simon, Amnesty Now! Ending Prison Overcrowding Through a Categorical Use of the Pardon Power, 70 U. Miami L. Rev. 444, 475 (2016);
The Politics of Decarceration (2019), In Prisoners of Politics, Rachel Barkow convincingly arguesthat the criminal-justice system is deeply broken: the United States’s incarceration rate is the highest in the world, and there is little evidence that this system, with all its devastating human and monetary costs, is contributing to improved publicsafety. Prisoners of Politics argues that at the root of this broken system is electoral politics, and that elected officials (legislators, prosecutors, and judges) will tend toward punitiveness. The book proposes a range of reforms, most notably the use of expert criminal-justice policymakers who would be insulated from the electoral process and devoted to ensuring that the system promotes public safety and avoids arbitrariness. The introduction of expertise can certainly help make the criminal-justice system less punitive, and policymakers should heed the book’s detailed policy recommendations. However, this Review argues that electoral politics are more likely than the book suggests to help bring about criminal-justice reform. There is nothing inherent about electoral participation’s punitive influence. To the contrary, we might be at the dawn of a new era of electorally motivated criminal-justice reform. In the past decade, reform has become orthodoxy in the Democratic Party and has been embraced by significant parts of the Republican Party. Recent grassroots mobilization and subnational elections provide hope that criminal-justice reformers can achieve significant gains through the electoral process. Additionally, original public-opinion analysis shows that younger Americans are less punitive than their older counterparts, and evidence suggests that tomorrow’s electorate might be less punitive than the electorate of the late twentieth century. For those reasons, this Review argues that electoral politicscan offer a path forward for those who seek
to end mass incarceration.
Democracy, Bureaucracy, and Criminal Justice Reform (2020). Across America, a growing number of jurisdictions are entering moments of political transition in criminal justice. This Article explores the political and institutional arrangements that alternatively impede, permit, or even accelerate a resulting change in criminal enforcement on the ground. Drawing on the democracy/bureaucracy framework developed in the fields of political theory and public administration, the Article considers how these fields and others can enrich our understanding of current political and institutional dynamics in American criminal justice. The Article then reflects on these dynamics’ implications for democratic responsiveness and systemic legitimacy, arguing, counterintuitively, that the very features of the democracy/bureaucracy relationship capable of slowing democratically sanctioned change in criminal enforcement can also end up hastening political shifts; and that, properly leveraged, the criminal enforcement bureaucracy can help realize deliberative and participatory democratic ideals.
John F. Pfaff, Locked In: The True Causes of Mass Incarceration— and How to Achieve Real Reform (2017).
John G. Malcolm, Criminal Justice Reform at the Crossroads, 20 Tex. Rev. L. & Pol. 249, 281 (2016) (“There are, of course, certain kinds of crimes such as murder, rape, arson, robbery, and fraud . . . that are clearly morally opprobrious. It is completely appropriate and necessary in such cases to bring the moral force of the government in the form of a criminal prosecution in order to maintain order and respect for the rule of law.”).
Individualized Sentencing (2019). In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama. Specifically, the Court held that juvenile offenders also were unique—in their capacity for rehabilitation and their diminished culpability—such that they too deserved individualized sentencing determinations. The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases. Felony convictions, however, are serious too. The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma. As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases. Doing so would require the Court to overrule its prior decisions, including Harmelin v.Michigan, but the Court’s opinion in Miller hints at a willingness to do just that. While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny. The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming. Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations; (2) it would eliminate draconian mandatory sentencing practices; and (3) it would shift the sentencing determination away from prosecutors back to judges. Part I of the Article describes the evolution of the individualized sentencing doctrine. Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing. In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable. Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine for defendants, legislators, and judges alike.
Advantages — General
Advantages — Poverty
Toward a Demosprudence of Poverty (2020). This Article describes the rift between a due-process-focused jurisprudence on legal–financial obligations—the centerpiece of the current fight against criminalization of poverty—and the substantive and structural problems of poverty criminalization. It argues that judges can help address this disconnect while still operating within the scope of their authority by engaging in a demosprudence of poverty—“a democracy-enhancing jurisprudence” that actively seeks to learn from poor people themselves and movements for economic justice. This Article builds from demosprudential theory to offer guidance for judges in their reason-giving, rulemaking, and courtroom management practices.
Adv antages — Jails Bad
Advantages — Prison Labor
American slavery reinvented (2015)
Advantages — Caronavirus
Advantages — Racism
#LivingWhileBlack: Blackness as Nuisance (2020). In 2018, the powerful combination of high-quality cellphone video and social media brought to light a barrage of incidents involving 911 calls reporting that Black people were occupying spaces that the callers believed they ought not occupy. In nearly all of these cases, the targeted men, women, and children were in places in which they had a legal right to be and engaging in activities in which they had a legal right to engage. Widely circulated and debated on social media, these incidents all went “viral,” spawning a series of social media hashtags, most strikingly “#LivingWhileBlack.” One might see in these incidents a new phenomenon in need of new legal tools. In this Article, we argue that these incidents are not emblematic of anything new, but rather a technology-enhanced incarnation of a much older tradition: the invocation of the property law concepts of nuisance and trespass to exclude Blacks from spaces racialized as “white.” This Article examines both the historical and modern incarnations of this “Blackness as Nuisance” tradition and argues that these efforts to distort property law norms arise from discomfort with racial integration and perceived Black physical mobility. The Article concludes with the suggestion that policymakers carefully consider the intersections of property law and criminal law, and the historical origins of these types of incidents, in order to craft effective responses to these highly charged and potentially dangerous encounters.
Plans — General
The Effort to reform the federal criminal justice system (2017). The federal criminal justice reform community scored an important victory with the passage of the First Step Act, a federal sentencing and prison reform bill that President Trump signed into law in late 2018. First Step’s passage broke many years of congressional gridlock around criminal justice reform bills, marking Congress’s departure from forty years of policies advancing the carceral state. First Step’s passage didn’t happen by accident. The federal reform community is now better funded, more prolific, and more politically diverse than ever before, and it successfully provided the political cover necessary for congressional members to vote for reform. This Essay describes the difficult movement for federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future federal reforms, while providing a normative analysis of the criteria the federal justice reform community should use in deciding whether to support particular reforms.
MAKE THEM HEAR YOU: PARTICIPATORY DEFENSE AND THE STRUGGLE FOR CRIMINAL JUSTICE REFORM* (2015). This article introduces participatory defense as a powerful new model for reforming public defense and challenging mass incarceration. Participatory defense amplifies the voices of the key stakeholders—people who face criminal charges, their families, and their communities—in the struggle for system reform. Participatory defense empowers these key stakeholders to transform themselves from recipients of services provided by lawyers and other professionals into change agents who force greater transparency, accountability, and fairness from criminal justice systems.
Plans — Decarceration Courts
Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law (2012) A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.
With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts. The existing scholarly commentary on specialized criminal courts is largely trapped in the mode of advocacy, alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts. In contrast, this Article takes a closer and more critical look at the marked expansion of these courts as a peculiar strategy to devise alternatives to conventional jail- and prison-based sentencing.
This article reveals that specialized criminal courts have become significant terrain for a contest between competing criminal law reformist models and that different outcomes in this contest may portend starkly contrasting futures for U.S. criminal law and governance. More specifically, this article introduces a typology and critical theoretical account of four criminal law reformist models at work in specialized criminal courts: a therapeutic jurisprudence model, a judicial monitoring model, an order maintenance model, and a decarceration model.
Part II argues that, whereas the first three of these models threaten to aggravate existing pathologies in U.S. criminal law administration — expanding criminal supervision, diminishing procedural protections, and possibly even increasing incarceration despite opposite intended effects — the fourth, less predominant model, a decarceration model, holds the potential to bring about substantial transformative change in U.S. criminal law. On a decarceration model, specialized criminal courts function as experimental diversionary programs that assign otherwise jail- or prison-bound defendants mental health and drug treatment, job and housing placement, along with other services in lieu of incarceration. On this model, integration within social contexts outside criminal justice systems substitute for the surveilling function of criminal supervision and incarceration.
Part III provides a theoretical framework to capture the possibilities for criminal law reform opened by a decarceration model, which may cognitively reframe shared understandings of crime and punishment; engage in institutional reinvention, transforming criminal law administrative institutions into different configurations; and facilitate systemic change by spurring conceptual shifts and freeing resources from criminal law administration for other sectors. Part IV begins to explore the more general perils attending a specialized criminal courts law reform strategy, including excessive legalism; dilution of the retributive and deterrent features of criminal punishment; inefficient proliferating specializations; and legitimation of harshness in conventional courts and unfairness toward less sympathetic, racial minority, or otherwise stigmatized defendants.
Plans — Alogorithms
Racial Equity in Algorithmic Criminal Justice. (2019). Algorithmic tools for predicting violence and criminality are increasingly deployed in policing, bail, and sentencing. Scholarly attention to date has focused on these tools’ procedural due process implications. This Article considers their interaction with the enduring racial dimensions of the criminal justice system. I consider two alternative lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It often fails to capture the full spectrum of racial issues that can arise in the use of algorithmic tools in criminal justice. Emerging technical standards of algorithmic fairness are at least attentive to the specifics of the relevant technology. But the technical literature has failed to grapple with how, or whether, various technical conceptions of fairness track policy-significant consequences. Drawing on the technical literature, I propose a reformulated metric for considering racial equity concerns in algorithmic design: Rather than asking about abstract definitions of fairness, a criminal justice algorithm should be evaluated in terms of its long-term, dynamic effects on racial stratification. The metric of nondiscrimination for an algorithmically assigned form of state coercion should focus on the net burden thereby placed on a racial minority.
Plans – Crack-Cocaine
Plans — Decarceration
Smart Decarceration (book)
Plans — Abolition
Plans — E-Incarceration
From De-carceration to e-carceration (2015). Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem. This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.
Plans — Monetary Penalty Reform
Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (2016); Laura I Appleman, Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System, 57 B.C. L. Rev. 1483 (2016); Neil L. Sobol, Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses, 88 U. Colo. L. Rev. 841, 844 (2017); Note, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 Harv. L. Rev. 1024 (2016)
Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1659 (2015); Olivia C. Jerjian, The Debtors’ Prison Scheme: Yet Another Bar in the Birdcage of Mass Incarceration of Communities of Color, 41 N.Y.U. Rev. L. & Soc. Change 235, 257–61 (2017); Larry Schwartzol, The Role of Courts in Eliminating the Racial Impact of Criminal Justice Debt, in Nat’l Ctr. for State Courts, 2017 Trends in State Courts: Fines, Fees, and Bail Practices; Challenges and Opportunities 14 (2017), https://www.ncsc.org/~/media/ Microsites/Files/Trends
Note, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prisons, 51 Harv. C.R.-C.L. L. Rev. 189 (2016).
Nat’l Consumer Law Ctr. & Criminal Justice Policy Program, Confronting Criminal Justice Debt: The Urgent Need for Comprehensive Reform (2016), https://cjpp.law.harvard.edu/assets/Confronting-Criminal-Justice-Debt-The-Urgent-Need-forComprehensive-Reform.pdf [https://perma.cc/SG2G-WQW9]; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. 277 (2014); Sarah Geraghty, Keynote Remarks: How the Criminalization of Poverty Has Become Normalized in American Culture and Why You Should Care, 21 Mich. J. Race & L. 195 (2016).
Plans — Forensics
Bad evidence (2019)
Plans — Mandatory Minimums Changes
Donald A. Dripps, Charging as Sentencing 1 (July 26, 2019) While the laws have survived constitutional challenges on 8th Amendment grounds85 the Supreme Court has never considered a due process challenge to mandatory minimum laws.86 Such a challenge, as Professor Dripps argues, should be based on the recognition that mandatory minimum laws merge charging and sentencing into one decision and violate the Constitutional due process requirement that “the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing
Jay Dorty, ACLU, The Human Cost of Mandatory Minimums, Drug Law Reform Project,
Beyond the Fair Sentencing Act, The Nation (2010),
Press Release, ACLU, “Girlfriend Problem” Harms Women and Children, Impacted Families Call Mandatory Sentences Unfair and Destructive, https://www.aclu.org/news/girlfriend-problem-harms-women-
Under current federal drug laws, individuals with minimal involvement in drug offenses, who are often women in relationships with men who are engaged in drug trafficking offenses, are held liable for the crimes of their boyfriend or husband.90 While many of these women knew of, but were not directly involved in the crimes, others did not know about their partner’s illegal conduct at all. But under federal conspiracy laws, these women can be arrested, prosecuted, and held liable for the entire quantity of drugs involved in activities of their boyfriends and sentenced under mandatory minimum laws despite their minimal involvement in the underlying conduct that constituted the crime.91
Molly Gill, Threading the Needle: The First Step Act, Sentencing Reform, And the Future of Criminal Justice Reform Advocacy, 31 Fed. Sent’g Rep. 107, 108 (2018)
Plans — Predictive Policing
Plans — Policing
The End of Policing (2017)
Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 Crime & Just. 441, 449 (2017)
Mirko Bagaric & Sandeep Gopalan, Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionality Seriously and Implementing Fair Fixed Penalties, 60 St. Louis U. L.J. 169, 190 (2016)
The State of the Death Penalty (2019) The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (“LWOP”) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a noncapital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created statewide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.
The End of Its Rope: How Killing the the Death Penalty Can Revive Criminal Justice (2017)
Has revenge become a justification to legitimize the death penalty? (2020). Revenge has played a role in criminal justice systems for thousands of years. From the Code of Hammurabi, to the Bible, to modern Supreme Court jurisprudence, revenge, or “getting even,” has been a consideration in how wrongdoers are punished, especially with respect to the imposition of the death penalty. Historically, revenge has not been viewed as a legitimate justification for punishment under American legal principles. However, in the past year, both the United States Supreme Court and the Department of Justice have signaled that revenge may well have a legitimate role in justifying the death penalty.
This Note will explore the development of revenge as a justification for punishment in the American criminal justice system. It will begin by showing that recent remarks from the bench and the Department of Justice signal a willingness to consider the effects of revenge on crime victims. It will then analyze the concept of revenge as part of a criminal justice system and discuss the United States Supreme Court’s historical views on revenge as a justification for the death penalty. Next, this Note will investigate revenge’s role in the Victims’ Rights Movement, specifically how revenge factors into victim impact statements. Finally, this Note ultimately asserts that revenge is not and should not be a goal of the criminal justice system given the public policy implications.
Plea Bargaining: From Patent Unfairness to Transparent Justice (2019). The fates of millions of Americans who are charged with criminal offenses each year are not determined in court. They are determined following a negotiation with a prosecutor. In this negotiation, prosecutors have considerably more bargaining power than defendants. Prosecutors are normally better resourced and do not have important personal interests at stake. Defendants often face the risk of considerable prison time if a trial outcome is adverse to their interests. No such risk confronts prosecutors. Thus, there is considerable pressure on defendants not to proceed to trial. The pressure is so significant that it has been noted that it is rational for defendants to plead guilty. This places the prosecution at an enormous advantage in the plea bargaining process. This strategic advantage manifests in prosecutors often insisting on severe penalties. The one-sided plea bargaining process is a principal reason for the mass incarceration crisis that exists in America today.
Gender Disparities in Plea Bargaining (2019). Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender disparities in this stage of the criminal justice system.
Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced. These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating gender disparities. While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment. These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.
The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea Bargaining (2015). United States Supreme Court and jurisprudential rationalizations for the constitutionality, centrality, and finality of plea-bargaining signify intellectual dishonesty, ignorance of human behavior and decision-making, and a statesanctioned threat to personhood and liberty in the United States of America. It is the Author’s purpose to expose the imperious practice of plea-bargaining for what it is—a cynical and intellectually dishonest institutional remedy for an unwieldy judicial system that has knowingly rationalized the practice to facilitate expedient resolution of ever-increasing caseloads. In order to establish plea practice as constitutional, the Supreme Court was forced to employ a jurisprudential discourse that shifted from the due-process language found in criminal law, especially the protections afforded by the Fifth and Sixth Amendments, towards contract law where defendants personifying homo economicus are “free” to negotiate away their rights. Beginning in 1930, and again in 1970, the Supreme Court applied an entirely novel standard to the adjudication of criminal cases, and it rationalized its decision on the need for efficiency. What is at stake is nothing less than the integrity of the Constitution, the Bill of Rights, and whatever still remains of an American sense of personhood under the law. The erosion of our rights that are so intimately associated with freedom due to plea-bargaining is an unprecedented injustice that cannot continue.
Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing (2018). Technocratic instruments like risk assessments may obscure but cannot answer tough, fundamental questions of system design. But recent pretrial reforms have shown early signs of progress. If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.
German Lopez, Why You Can’t Blame Mass Incarceration on the War on Drugs,
A survey of state laws (2018)
Sanjay K. Chhablani, Legitimate Justice: Using Clemency to Address Mass Incarceration, 16 U. Md. L.J. Race Religion Gender & Class 48, 51 (2016).
Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform, 59 WM. & MARY L. REV. 387, 449 (2017). This article explains that relying on the DOJ to implement criminal justice reform will fail. It is a good answers to any type of DOJ as an agent counterplan, a consult DOJ counterplan, a memos counterplan.
Cooperative Federalism and Policy Reform Specifically, this Article proposes an amendment to the statute authorizing the Community-Oriented Policing Services (“COPS”) program. This Amendment would require the federal government to withhold 5% of COPS funding from states that fail to implement measures to reduce police misconduct and promote police accountability. The COPS program has distributed billions of federal dollars to states to hire police officers and implement community policing programs, but the authorizing statute includes no requirement that the agencies receiving these funds ensure the accountability of the officers they hire. Pursuant to the model proposed in this Article, states would develop their own standards to promote police accountability and reduce police misconduct, while the DOJ would determine if the measures met minimum federal guidelines. Thus, the proposed regime is consistent with “cooperative federalism,” a process in which states implement federal standards, yet retain the flexibility to develop and supplement those standards. This Article explores several justifications for implementing this scheme, examines the constitutionality of the proposed amendment, and concludes that the proposal is a viable tool to achieve sustainable reforms in the nation’s local police departments.
Related — Federalization
Federalization’s Folly’s. (2019) Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the “federalization” of criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land—and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing district attorney”—that is to say, pursing many of the same kinds of street crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams and a national drug problem that has never been worse.
The time has come for a major overhaul of federal criminal law. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcers to offenses that are of peculiar concern to the federal government and offenses that states cannot adequately handle on their own. Sentencing policies that generate unusually severe punishment in federal court, such as harsh mandatory minimum sentences and overbroad asset forfeiture laws, should be repealed or at least drastically reformed to eliminate incentives for prosecutors to pursue garden-variety criminal matters in federal court. In this context, as in many others, “less is more”: a streamlined federal criminal code limited to the nation’s worst offenses, which reserves major penalties for major crimes, will better protect the public than does our costly and ineffective current system of overfederalization.
Voodoo Criminology (2020)
The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe
Crime DA Answers
Drug War DA Answers
Capitalism Kritik — Criminal Justice Specific
The Criminal Justice System is not Broken. It is doing what it is designed to do (2019). Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System…This book is also meant to be an acknowledgement of the real failure of lawyers in our vision, in our understanding of politics, our understanding of organizing, our understanding of power, the way that we’ve tried to use the legal system to change what is really a problem of capitalism and white supremacy in power. And it’s meant to reach out and say we actually need a really different approach: a mass power-building movement that lawyers should not be leading.
Beyond Criminal Justice Reform (2015). Real criminal justice reform demands profound social change. The fixation on severe sentences and police brutality masks harder truths.
The Thirteenth Amendment, Modern Slavery, Capitalism. and Mass Incarceration (2019). Profit, power, and lack of moral regard for the lives and conditions of those most affected by it fueled slavery’s enduring legacy.Courts, legislatures, and law enforcement play a unique role, both in shaping the multiple histories of slavery, but also in defining its future reach. Part IV provided several possible strategies to dismantle modern slavery. What is clear is that law alone will not suffice. Collective desire to end the exploitation of human labor requires more than law. It requires a shift in values.
Neoliberalism, mass incarceration, and the US debt–criminal justice complex (2016). While debtors’ prisons in the United States were outlawed in the early 19th century, recent reports indicate that a growing number of people across the US are currently imprisoned for debt. This process typically occurs in two ways: debtors are found in contempt of court for non-appearance after being pressured into repaying consumer debt, or offenders are incarcerated for unpaid legal financial obligations (LFOs) incurred in the criminal justice system. While numerous legal scholars have examined these practices, little scholarship has situated this phenomenon within the politico-economic landscape of neoliberalism. Seeking to chart the intersections between economic restructuring and the expansion of the carceral state over the past 40 years, this article situates the modern debt–criminal justice complex within the broader historical trajectories of debt, incarceration, and institutional racism within the US. Emphasizing the centrality of US state reforms implemented under neoliberalism, this article examines the transformation of the federal welfare system toward ‘workfare’, as well as bankruptcy reforms implemented in the context of rising consumer debt during the 1990s and early 2000s. I maintain that these overlapping transformations, alongside the expansion of the criminal justice apparatus, were central historical processes that shaped the modern debt–criminal justice complex in the US, which continues to criminalize low-income and racialized populations across the country.
The New American Slavery: Capitalism and the Ghettoization of American Prisons as a Profitable Corporate Business (2017). One explanation for the disproportionate number of Blacks incarcerated in the American penal system is the continuation of laws that have long since been eradicated but are still active through new means of legislation. These pieces of legislation like the laws of the past, Jim crow Slavery parallel and embody the same outcome, the management to deprive and humiliate. This paper presents a connection of how previously abandoned historical sequences have been maintained and manifested into a new form of repression and containment of Blacks. The ever increasing incarceration of individuals of color Latino men and most prominently Black men, is a direct result of governmental legislations in the guise of wars on drugs and ghettos deemed to be out of control. These actions have continued to deny equal educational and employment opportunities to people of color while destabilizing cultural identities. The idea to imprison so many Blacks and to make the neighborhoods they live in as intolerable, only serves to publicize and affirm the association of the two. This association helps to maintain the socioeconomic differences that have been in place since slavery.
Capitalism, Social Marginality, and the Rule ofn Law ‘s Uncertain Fate in Modern Society (2017). : The rule of law is liberalism’s key juridical aspiration. Yet its norms, centered on the principles of legality and legal generality, are being compromised all over the political and legal landscape. For decades, the dominant explanation of this worrying condition has focused mainly on the rise of the welfare state and its apparent incompatibility with the rule of law. But this approach, though shared by a politically diverse range of scholars, is outdated and misconceives the problem. A central function of the modem state has always been to prevent capitalism’s inherent tendencies toward social marginalization from devolving into general social crisis. This involves prosecuting an agenda of social control aimed at the socially marginalized. For much of the twentieth century, the welfare state represented the dominant means by which the American state advanced this agenda. While not unproblematic, the welfare state’s reign in this regard proved at least relatively compatible with the rule of law. Over the last three decades, though, the state’s primary means of responding to the problem of marginality has shifted substantially, away from the welfare state toward a reliance on the criminal justice system and its institutions to advance this agenda. This shift in the dynamics of social control,originating in both ideology and political economy, is evident in the retrenchment of the welfare state and in concurrent changes in the nature of criminal justice that reflect its growing concern with regulating social marginality. This process is central to understanding the rule of law’s fate in modem society, as it has accorded to the criminal justice system functions that render adherence to rule of law norms increasingly untenable in this most important of contexts. This argument not only refocuses the debate about the rule of law’s fate; it also challenges the entrenched view of the relationship between the rule of law and the welfare state and, ironically, given the rule of law’s origins in capitalism, it recasts capitalism itself as the more fundamental problem for the rule of law in modem society. For it is in capitalism that both social marginality and the state’s underlying impulse to control this phenomenon are based.
Racism and America’s Prison Economy: Carceral Capitalism and Anti-Capitalist Politics (2018).Jackie Wang’s Carceral Capitalism (MIT Press, 2018) is arguably one of the most wide-ranging, critical, and theoretically nuanced examinations of the political economy of the carceral state in the USA to date. While there has been a substantial growth in writing on the criminal justice system in recent years, particularly following critical engagement with Michelle Alexander’s The New Jim Crow (2010), there remains important theoretical gaps in understanding the political and economic dynamics of mass incarceration under neoliberalism. Wang helps to fill those gaps by taking seriously the relevance of radical political economy to understanding the foundations of the carceral state and outlining the limitations of these approaches in acknowledging the centrality of anti-black racism which, as Wang notes, is “at the heart of mass incarceration” (85).
Racial capitalism and punishment philosophy and practices: what really stands in the way of prison abolition (2017). This paper explores punishment philosophy and practices in the United States from a critical criminological perspective, utilizing a racial capitalism framework to illustrate forces that impede prison abolition. The paper examines historic and contemporary punishments implemented against ‘others’ to show how such practices help to sustain white capital accumulation and white privilege. The paper also discusses a number of the individual social-psychological theories that assist in the maintenance of that system. Finally, the paper calls for the eradication of racial capitalism through a stronger revolutionary consciousness.
Legal institutionalism: Capitalism and the constitutive role of law (2017). Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates for inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies.
How Prisons Serve Capitalism (2018)
Prisons and Capitalism (2016)
Can Marxism make sense of crime? (2018). In this chapter my intention is to draw on some themes analysed by the above authors and my own reading of Marx in order to give an overview of some areas where Marxism has been, or could be, used to analyse crime. Marx and Engels themselves associated crime with the lumpenproletariat, but I argue that the definition of the lumpenproletariat is foggy, and the concept is dubious for the same reasons that Charles Murray’s conception of the underclass is dubious. It would be possible to make some use of Marx’s theory of alienation in the analysis of crime, but I consider that the theory is too vague to be seriously helpful. I then turn to the idea that crime might be part of the reproduction conditions of capitalism, and basically conclude that it is a contingent possibility rather than a necessary feature. Another way of linking Marxism and crime is through the analysis of law, and I agree with Paul Hirst and E. P. Thompson (strange bedfellows!) that law has a substance of its own, and as such can provide a degree of defence to working-class interests. I then move on to discuss the question of distributive justice, on which I consider that Marxists today need a theory of distributive justice, and criminal justice, on which I argue that there is a worthwhile distinction between relatively decent capitalist enterprises such as Marks & Spencer’s and the Mafia, which can be captured in the idea that the former is not a criminal enterprise whereas the latter is. Finally I argue that various forms of crime would not disappear in a communist society, contrary to the views of Bonger and Walton, Taylor and Young, and that a communist society would actually criminalise some activities which are currently legal.
Prison, Coerced Demand, and the Importance of Incarcerated Bodies in Late Capitalism (2016). Research has done a fine job in noting the utility of mass incarceration for social control and the creation of quiescence, especially in the face of economic precariousness and growing wealth inequalities. Some of this scholarship also posits a profit-centered motive, activated through the growth of for-profit prison corporations or forced prison labor. I build on this work in this article but extend the emphasis on profit by suggesting that incarceration also acts as a locus for the coercion of demand and consumption. In postindustrial economies characterized by chronic crises of demand, mass incarceration compels minimally market-attached residents to participate in the market in the capacity in which they are most required—as consumers. I construct estimates of the increase in national aggregate demand associated with incarceration and find it to be equivalent to the addition of a small country of consumers to the national economy.
e David Garland, The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society, 36 Brit. J. Criminology 445, 461 (1996) (“In a society which manifests deep social and racial divisions, which experiences high crime rates and levels of insecurity, where welfare solutions have been politically discredited, and in which a developing commercial sector encourages and facilitates the expansion of imprisonment—in other words in societies such as the USA or the UK—a punitive political and legal c
Capitalism Kritik — General
Queer Law K
Queer Phenomenology in Law: A Critical Theory of Orientation (2019) This Article argues for the application of phenomenology to legal understanding, specifically as a way to think about and through queer people’s interactions with law as well as queer theory in law. There are both pragmatic and theoretical justifications for this project. The pragmatic justifications include the need to better address the legal issues and experiences of queer people, recent political and legal decisions and debates that affect queer people specifically, the need to better provide epistemological resources for queer lawyers, law scholars, law students, and their allies, and the need to better understand how law affects minoritarian populations regardless of specific identity characteristics. The theoretical justifications include the relative under-theorization of queer theory in law, the improvement of legal theory’s interaction with related theories in the humanities and social sciences, and the development of a more robust theory of everyday interactions with law consistent with individuals’ diverse experiences and identities. These justifications counsel for further study and attempts to account for diversity in law.
Paul D. Butler, Essay, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2189 (2013). This is an
The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform (2016) Hein Online, requires purchase
The Newest Jim Crow (2018)
Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1156 (2015); see also Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Dorothy E. Roberts, Democratizing Criminal Law As an Abolitionist Project, 111 Nw. U. L. Rev. 1597, 1604–05 (2017) (“My criminal law scholarship has not claimed that criminalizing pregnant black women, loitering laws, order-maintenance policing, mass incarceration, capital punishment, and police terror enforce a democratic system in a discriminatory manner. Rather, I have argued that these institutions enforce an undemocratic racial caste system originating in slavery. Making criminal law democratic, then, requires something far more radical than reducing bias or increasing inclusion in this anti-democratic system. Democratizing criminal law requires dismantling its anti-democratic aspects altogether and reconstituting the criminal justice system without them. I therefore have joined calls for an abolitionist approach.”).
Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & Lee L. Rev. 883, 919 (2013) (“An important strand of contemporary conservative thought
Darryl K. Brown, Can Criminal Law Be Controlled?, 108 Mich. L. Rev. 971, 981–82 (2010)
Reforms K Answers
J. Harvie Wilkinson III, Essay, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099 (2014).
PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIAL INSECURITY (2009) (arguing that the complementary erosion of the social-welfare state and explosion of the penal state has resulted in the criminalization of social insecurity).
Sara Mayeux, The Idea of the “Criminal Justice System,” Am. J. Crim. L. (2018) Bernard E. Harcourt, The Influence of Systems Analysis on Criminal Law and Procedure: A Critique of a Style of Judicial Decision-Making (Columbia Pub. Law Research Paper No. 14-562, 2017
WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 3–4 (2011)
Probable Cause (2018)