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Media in this section analyzes various issues that arise under the general heading of "criminalization", conceived very broadly. The subjects include the overuse of criminal law, either in general (Husak) or in the federal system (Smith), as well as the abuse of lowlevel offenses (Natapoff). Likewise, criminalization embraces questions raised by particular substantive crimes and their reform, such as the connection between drug prohibition and violence (Miron), the legalization of marijuana (Kreit), and the modification of sexual offenses (Weisberg). This section also considers issues related to the instruments and organizations associated with crime and violence, namely, firearms (Zimring) and gangs (Decker). Moreover, criminalization can implicate borders—sometimes quite literally, as when American criminal justice is invoked to serve immigration goals (Chacón) or applied to crimes committed outside of the United States (O’Sullivan). This section concludes by examining two special categories of offenders—individuals with mental disorders (Morse) and juveniles (Feld)—and the litany of questions raised by their treatment throughout the criminal process.
With the rising rates of opioid overdose deaths nationally, political players in rural counties — coroners and district attorneys — are increasingly responding with hard-on-crime reactionary behavior. These prosecutors are bringing drug-induced homicide charges — that a death was not only an overdose but also a homicide — and placing the blame on the distributor of the drug. In the vast majority of these prosecutions, the distributor is simply a friend or acquaintance who shared the drug with the deceased. Coroners, appointed to investigate suspicious deaths, are now also increasingly determining these unexplained accidental deaths to be homicides.
The joint effort of county coroners and county prosecutors to bring homicide charges that are unlikely to suffice legally, yet make a point politically about the opioid epidemic, highlight the lack of regulation and lack of impartiality in death investigations, and imply the goal of a death investigation is a criminal charge. When death certificates are unreliable but used for prosecutorial purposes, our history of court reliance on faulty forensic evidence continues its dishonest trajectory of mass incarceration. This use furthermore belies the intended purpose of a medicolegal death investigation according to the National Association of Medical Examiners: public health.
This Article explores the lack of regulation of coroners, concerns within the forensic science community on the reliability of coroner determinations, and ultimately, how elected laypeople serving as coroners may influence the rise in drug-induced homicide prosecutions in the midst of the opioid epidemic.
Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved in the events surrounding Gray’s death is a textbook problem of substantive criminal law: Maryland’s law of homicide suffers from, as Justice Jackson famously phrased it, “variety, disparity and confusion” surrounding “definitions of the requisite but elusive mental element.”
As this Essay explains, Maryland law on the mens rea governing the two most significant homicide charges alleged in the indictment, second degree depraved heart murder and involuntary manslaughter, is stunningly vague. The statutes from which these charges originate are silent on the culpability requirement applicable to each offense, and the interstitial policies the Maryland courts have created to fill in the resulting gaps are a case study in opacity, having been variously described by the state’s own judges as “treacherously ambiguous,” “perplexing,” and akin to “pornography” in that they defy clear definition. But the lack of clarity in this area of law is no mere juridical infelicity; it has the potential to negatively affect the proceedings against the officers by substantially increasing the risk that arbitrary and discriminatory factors influence judicial and jury deliberations over the homicide charges.
This Essay addresses the significance of the problem in two parts. Part I discusses the important role that the mens rea governing the offenses of depraved heart murder and involuntary manslaughter may play in the prosecution of the police officers involved in the events surrounding Gray’s death. Part II explores the substantial vagueness of the mens rea of depraved heart murder and involuntary manslaughter under Maryland law and considers its potential consequences for the legal proceedings.
In this Article, I critically examine the role of normative masculinity in determining the shape and scope of the criminal law doctrine of rape by fraud, which purports to criminalize sexual intercourse procured through certain material deceptions. In application, the rape by fraud doctrine is exceedingly narrow — deceptively induced sexual intercourse is rarely criminalized as rape, despite deception’s profound impact on the voluntariness of sexual consent. As the Article explains, the rape by fraud doctrine is thus in tension with the prevailing view that rape law principally protects a thick norm of individual sexual autonomy. Despite this tension, the narrowness of the rape by fraud doctrine is frequently defended, often by those who are most committed to individual autonomy elsewhere in rape law.
Through an analysis of court decisions and academic commentary, I demonstrate that those defenses largely rest on appeals to a romanticized ideal of the practice of seduction. I illuminate the link between seduction and a prevailing ideology of normative masculinity that allocates social status for men on the basis of demonstrations of sexual conquest. That ideology perpetuates narratives in which women, through their capacity to grant or withhold consent, hold power over men when pursued as objects for sex. Indeed, within this account, the transgression of women’s power is what makes sexual conquest worthy of masculine status. Deceptions used to procure sex are criminalized only in exceptional cases where the narratives of interpersonal power break down. Thus, the rape by fraud doctrine can be seen as codifying existing limits on masculine status transfer. Ultimately, I argue that understanding the rape by fraud doctrine in terms of normative masculinity exposes an important continuity between contemporary rape law and rape law historically, in which rape was a crime against men’s property interest in women.
The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life — and rights of citizenship — as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns.
Initiative 26, however, will not grant the state permission to pursue such prosecutions. In Mississippi, the state currently does not have the authority to prosecute a pregnant woman for actions, intentional or unintentional, that are harmful to her unborn child. If Initiative 26 passes, the state still will not have the direct authority to criminally prosecute a mother for harm to the fetus, because the initiative only changes the definition of person within the limited scope of the Mississippi Bill of Rights. The definition of person for all other statutes, including statutes defining crimes, will not be altered.
Notably, this lack of authority for criminal prosecutions may be of little significance. The State of Mississippi is currently prosecuting pregnant women for unintentional, harmful acts toward a fetus, with or without any statutory basis. Already, the courts are challenged with determining whether the state may prosecute pregnant women on behalf of the unborn child. Initiative 26 only heightens the possible statutory confusion. Ultimately, politics may influence the end result more than a strict interpretation of the law. In the cautionary words of National Advocates for Pregnant Women on the potential impact of Initiative 26: “Never before have rights been given to a new class of people while taking away the rights of others.” If the rules of statutory interpretation are carelessly disregarded, that day may indeed come.
Fat Studies, while burgeoning, is not new. The area is, however, under heightened scrutiny as investigative journalism articles, frightening statistics, and First Lady Obama’s own jumpstart initiative all point to the current issue of obesity in America. In spite of the surfeit of current attention, scholars have yet to address or acknowledge the intersection between fatism and criminal justice. While Deborah Barnes recently published an extensive article and book about the role of appearance in society and discrimination, pointing to employment discrimination suits in particular, no one has examined the palpable impact of obesity on the gaze and decision-making of a jury, a judge, and the role of obesity in our criminal system as a whole. Just as an individual is discriminated against through hiring, job promotion, and equal treatment due to her size, this article will posit that the appearance of obese defendants is used against them and connected with concepts of fault, guilt, and blame. The article seeks to establish this bias through examining cases and comparing social studies.
Legal philosophers have thought long and hard about the limits of the substantive criminal law and the principles that should be employed to constrain it. The attempt to formulate and apply these principles is a small but important part of an effort to retard the phenomenon of overcriminalization. Regardless of their political ideology, most commentators agree that the tendency to criminalize too much and to punish too many are problems from which the United States currently suffers. Despite this near consensus, concrete proposals to implement a theory of criminalization tend to be embraced or resisted depending upon the socioeconomic class of defendant they would be expected to benefit. Like much else in contemporary politics, specific reforms seem to be stalled on partisan grounds and are not evaluated on their merits.
Some of the most critical issues in policing today are examined in this section, beginning with the overarching challenges of ensuring accountability through democratic mechanisms (Ponomarkenko & Friedman) and providing remedies for constitutional violations (Harmon). This section then turns to specific practices by law enforcement. These include the power to stop and frisk individuals in public spaces (Fradella & White), which is a key component of a new style of policing focused on, among other things, aggressive enforcement of minor crimes (Fagan). Much of this debate revolves around the role that race plays in police decisions to detain, question, and search individuals (Harris), sometimes without even triggering constitutional scrutiny (Carbado). Issues of race have also had a profound impact on recent controversies over police uses of force (Richardson). Other concerns result from the advance of modern technology, such as police access to computer databases (Slobogin). Some problems, however, have long existed in law enforcement: extracting confessions through police interrogation (Leo), identifying suspects by eyewitness testimony (Wells), and obtaining evidence from informants or cooperating witnesses (Richman).
This Article advances the novel argument that there is no such thing as the Fourth Amendment’s private-search doctrine. For nearly four decades, courts have invoked the doctrine to permit police to replicate, without a warrant, a prior search performed by a private third party. This Article contends that the doctrine rests on a fundamental misreading of the Supreme Court’s seminal precedents and an untenable theory of Fourth Amendment privacy.
The Supreme Court has never announced a “private-search doctrine.” It has addressed the fact pattern of private searches only twice, and not since 1984. The opinions in those two cases, Walter v. United States and United States v. Jacobsen, are notoriously unsettling and hard to judge. Yet courts and commentators have long interpreted those cases as holding that Fourth Amendment privacy is vitiated by the exposure of information to third parties, even when that exposure is the result of an unforeseeable and surreptitious search. Uncertainty over the bounds of the doctrine has resulted in the development of drastically different approaches to private searches, recently culminating in a federal circuit split.
Performing a close examination of the Walter and Jacobsen opinions, this Article demonstrates that those cases are best understood not as announcing a new Fourth Amendment doctrine—the private-search doctrine—but rather as extending an existing exception—the single-purpose container doctrine—into a new factual context. Correcting this decades-old mistake harmonizes many of the intuitions of lower courts regarding private searches while simultaneously resolving two circuit splits: the split over the private-search doctrine and a longstanding split over the application of the single-purpose container doctrine. Perhaps more importantly, this correction also sheds new light on the nature of Fourth Amendment privacy and the normative arguments for its protection.
The shooting of Trayvon Martin has caused many to question what exactly led to the death of an unarmed seventeen-year-old African-American teenager. This essay provides at least one answer: the brain in creating and preserving memories can distort one's perception of events and people. In the courtroom, eyewitness testimony can be the most powerful and riveting information for a jury – and yet can contain that same inaccuracy of perception and memory. Bringing these two separate but connected insights together, this essay examines the role of memory and perception in the death of Trayvon Martin, along with eyewitness identification in criminal cases, ultimately calling for broad reform in our criminal justice system.
Often when people talk about accountability in policing, they are focused on “back-end” accountability, which kicks in after something has gone wrong. What is needed in policing is accountability on the “front end”—which means that the public gets to have a say in what the rules for policing should be in the first place. Having front-end, democratic rules for policing helps to ensure that policing practices are consistent with community values and expectations, and can help build trust and legitimacy between the community and the police.
Although federal law authorizes private citizens and public officials to challenge constitutional violations by the police in several ways, Supreme Court decisions have made it difficult to exclude criminal evidence, receive damages, impose reforms on departments, or criminally punish officers in response to misconduct. State and local remedies for police misconduct exist, but communities often distrust them. As a result, ironically, officers can feel overregulated at the same time others think police are not sufficiently accountable for misconduct. Policymakers and legislators cannot easily remove some of the obstacles to using litigation to improve policing. Nevertheless, they can promote policing practices that protect rights and build community trust by making it easier for departments to adopt reforms, by encouraging community input into police policymaking, and by supporting research, data collection, and transparency. In these ways, policymakers and legislators can improve police accountability, even as the Court makes it harder to use legal remedies to do so.
Although stop-and-frisk has a long history as a policing tactic rooted in particularized, reasonable suspicion of criminal activity, several U.S. jurisdictions morphed stop-and-frisk into a broad and sometimes aggressive crime-control strategy. The recent experiences in many jurisdictions demonstrate a strong disconnect between constitutionally sanctioned principles and policing practice. Arguably, stop-and-frisk has become the next iteration of a persistent undercurrent in racial injustice in American policing. Although stop-and-frisk has a legitimate place in 21st-century policing, changes must be made to prevent officers from engaging in racially biased or otherwise improper and illegal behavior during stops of citizens.
Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher-crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the racial disparities in the new policing in vastly different areas, including more frequent police contact and new forms of monetary punishment. A set of institutional and statutory reforms can regulate and mitigate the harms of this policing regime to avoid compounding other social and economic deficits.
This section considers some key aspects of criminal adjudication, including the historic but still mysterious institution of the grand jury (Fairfax) and the underappreciated decision to detain a defendant prior to trial (Stevenson & Mayson). The most powerful actor in the process, the prosecutor, has a complex role but often lacks full information and external input (Wright). For instance, the prosecutor controls plea bargaining—a practice that dominates the criminal justice system (J. Turner)—in the absence of binding guidelines for prosecutorial decision-making (Pfaff). In turn, defense counsel is frequently charged with representing a staggering number of indigent defendants but without adequate funding (Primus). The ideal of an adversarial process may be undermined further by restrictions on pretrial discovery (Brown) and the use of forensic evidence found to be scientifically unsound (E. Murphy). These and other issues have contributed to the phenomenon of wrongful convictions of innocent individuals (Garrett). Further problems may implicate important values besides accuracy, such as racial equality in criminal adjudication (Butler) and due respect for the interests of crime victims (Cassell). A thorough discussion must also consider what occurs after trial, especially the correction of errors on appeal (King), or what might happen instead of the conventional trial process, like the use of specialty courts (Boldt).
The opioid crisis spotlights rural communities, and accompanying that bright light are long-standing, traditional biased tropes about backwards and backwoods White Appalachians. These stereotypes conflate rurality with substance use disorder as the next progression in dehumanizing stereotypes. Widespread attention to our nation’s use disorder crisis, however, also brings an opportunity to recognize these fallacious stereotypes and to look more closely at the criminal legal systems in rural communities. In this Article, I use drug-induced homicide — what has become a popular prosecutorial charge in response to the opioid crisis — as a prism to identify and critique the failings in rural criminal courts more broadly. This Article includes modest recommendations that acknowledge and respond to these inadequacies while attempting to preserve people’s constitutional rights and decrease opiate-related overdoses.
In response to the growing opioid crisis, many prosecutors are treating overdose deaths as homicides. Since 2010, drug-induced homicide prosecutions have increased at least threefold. Criminal defense attorneys and defendants' families have asked for help in understanding these cases and how to defend them. This Toolkit, significantly expanded in its second edition, is an effort to provide that help.
This is the third in a trilogy of pieces that examine and evaluate the admission standards American courts apply to forensic “science” evidence proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts.
This article takes a comprehensive look at the criminal courts’ treatment of scientifically rebuked bite mark identification evidence. Bite mark identification testimony is unreliable and, as a result, is responsible for dozens of wrongful convictions. Moreover, bite mark analysts have targeted sexual minority defendants by baselessly theorizing that bite marks are more common in crimes involving sexual minorities, generally, and lesbians, in particular. American courts continue to admit bite mark identification testimony notwithstanding its lack of scientific validation, recurring starring role in wrongful convictions, and espousal of lesbian vampire mythology.
This article, therefore, does not rely on the criminal legal system to keep faulty bite mark identification evidence out of the courts. Instead, it demands that the scientific community of forensic odontologists and dentists police flawed bite mark testimony. Specifically, it calls on the national and state forensic odontology oversight entities to enhance their weak or non-existent regulation of bite mark proponents and fulfill their legal mandate to protect the public from unscrupulous and unsupported expert testimony.
Fire science, a field largely developed by lay “arson” investigators, police officers or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages in justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now-debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases notwithstanding that both criminal and civil courts are required to operate under the same expert evidence exclusionary rules.
Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civil proceeding. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as “scientific” or “technical.” Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical, rather than scientific, knowledge in the overwhelming majority of American jurisdictions.
The ongoing admission of flawed fire science in criminal cases causes us to circle back to the problem Daubert sought to address: the courts’ failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gatekeeping when prosecutors proffer questionable forensic “science” evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy.
This piece posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.
In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic discipline, specifically forensic odontology. Finally, this Essay proposes the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.
This Essay responds to Professor Brandon Garrett's "The Constitutional Regulation of Forensic Evidence," and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is — similarly to Garrett's — rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client's case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this Essay also posits ways to ensure complete Brady compliance as well as obtain accurate and reliable forensic findings. Correctly understanding forensic findings can remedy a lack of transparency surrounding whether results were completely disclosed and whether the results support the testimony of lab analysts. Finally, to assist the court with its gate-keeping role of admitting forensic science disciplines and findings, this Essay recommends that courts appoint independent experts under Federal Rule of Evidence 706.
This section begins with three traditional rationales for punishment— retribution (J. Murphy), deterrence (Nagin), and incapacitation (Bushway)— and the failures of modern sentencing under these theories. The resulting mass incarceration of millions of people calls for new strategies (Clear & Austin), such as well-informed risk assessments in sentencing to gauge the probability of recidivism (Monahan). Two sentencing schemes typically associated with incarceration are explored: sentencing guidelines (Berman) and mandatory minimums (Luna). Some jurisdictions also retain the ultimate sanction—capital punishment (Steiker & Steiker). These schemes have raised serious issues like racial disparities in sentencing (Spohn). Other approaches— for instance, community punishments (Tonry) and economic sanctions (Colgan)—may avoid incarceration but not without their own challenges. Turning to confinement and release, a lingering question is whether prison rehabilitation programs can reduce recidivism (Cullen). Other critical issues concern the deplorable state of prison conditions (Dolovich), the difficulties faced by prisoners with disabilities (Schlanger), and the prospect of releasing older prisoners (Millemann, Bowman-Rivas & Smith). All of these topics eventually lead to the reentry of former inmates into society (S. Turner). For many convicted individuals, the biggest impediments to a law-abiding life are the collateral consequences of conviction (Chin), including certain registration and notification requirements (Logan). For other offenders, however, the only hope lies in an act of clemency (Osler).
This Essay explores the relationship between second look sentencing and retributive theory by focusing on the primary vehicle for authorizing and distributing punishment in most American jurisdictions: criminal legislation. Looking beyond debates over the import of evolving norms to desert judgments, the Essay argues that the central retributive issue presented by post-conviction judicial sentencing reductions is whether the long-term punishments imposed by criminal courts live up to the proportionality standards of any time period. Using the District of Columbia’s criminal statutes as a case study, the Essay explains how three pervasive legislative flaws—statutory overbreadth, mandatory minima, and offense overlap—combine to support (and in some instances require) the imposition of extreme sentences upon actors of comparatively minimal culpability. The Essay argues that this code-based sentencing reality, when viewed in light of structural forces driving prosecutorial and judicial decisionmaking, provides very strong reasons to doubt the systemic proportionality of the severe punishments meted out in the District, as well as in other jurisdictions that suffer from similar legislative and structural problems. And it explains why this epistemic uncertainty offers a compelling reason to authorize courts to reevaluate (and in appropriate cases reduce) severe punishments through second look sentencing reform—both in the District of Columbia and beyond.
More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as "civil" in character — and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance. Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable. This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.
This Article argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies. I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course. The Article is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Article. Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark. Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.
This Article examines expungement in general, and the expungement statute in West Virginia in particular. Section I considers the historical basis of the West Virginia expungement statute, while Section II explains in detail the current West Virginia statute. Section III describes the collateral consequences of a criminal conviction in West Virginia, leading to incentives for modifying our expungement statute in Section IV. These benefits include supporting local economies and reducing recidivism. Section V concludes by comparing and contrasting West Virginia’s statute to other states and then by providing suggestions for modifying the West Virginia expungement statute. Support for reform of the statute comes from data on the impact of expungements on communities, on government fiscal responsibilities and capabilities, and on the ultimate impact on the functioning of our state criminal justice system. In line with the Justice Reinvestment Act, expungement reform is a next step along our path of broader prison changes in West Virginia.
Mississippi codified the death penalty because people thought a death sentence was a fair punishment for the most heinous of crimes. And, as predicted by behavioral economics, people were willing to sacrifice their own material well-being — in other words, willing to pay — to punish wrongdoers.
But the death penalty is not fair. Regardless of whether the death penalty is a just punishment, the financial toll that this policy places on citizens and counties is unfair. Because citizens have continually paid the costs of punishment, the costs have slowly disappeared from sight and knowledge in correlation to their growth. As the cost of a death penalty trial rises through subsequent appeals, counties must levy additional taxes to pay trial expenses, instead of using these taxes to pay for paving roads or repairing bridges. Few officials discuss the financial burden and consequences of the death penalty. This Article seeks to remedy that silence.
Many scholars and jurists who rightfully deplore the excessive punishments in our system of criminal justice—excessive in both length and cruelty—place the blame for this excess on the influence of retribution and what they view as the vile emotions of anger, hatred, and vengeance that drive retribution. This understanding of retribution is totally mistaken and, indeed, the best corrective for the evils in our present system of punishment is to be found in retribution properly understood. When properly understood, retribution will be seen as grounded not in vengeance but in respect for human dignity and a concept of desert grounded in human dignity.