Academy for Justice

Bridging the gap between academia and criminal justice reform

The Academy for Justice generates a wide range of research on criminal justice reform, which covers four main areas: Criminalization, Policing, Pretrial and Trial Processes, and Punishment, Incarceration, and Release. This page is currently under construction. Please check back in again soon to view our research.

Criminalization

Policing

Pretrial and Trial Processes

Punishment, Incarceration, and Release

Criminalization

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.

Beety, Valena Elizabeth, The Overdose/Homicide Epidemic. 34 Ga. St. U. L. Rev. 983 (2018).

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.

Serota, Michael Eli, Mens Rea, Criminal Responsibility, and the Death of Freddie Gray. 114 Michigan Law Review First Impressions 31 (2015).

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.

McJunkin, Ben A., Deconstructing Rape by Fraud. Columbia Journal of Gender and Law, Vol. 28, No. 1, 2014.

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.

Beety, Valena Elizabeth, Mississippi Initiative 26: Personhood and the Criminalization of Intentional and Unintentional Acts by Pregnant Women. Mississippi Law Journal, Vol. 81, p. 55, 2011.

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.

Beety, Valena Elizabeth, Criminality and Corpulence: Weight Bias in the Courtroom. 11 Seattle J. for Soc. Just. 523 (2013).

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.

Husak, Douglas, Overcriminalization, Reforming Criminal Justice Vol. 1 25–38 (2017).

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.

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Smith, Stephen F., Overfederalization, Reforming Criminal Justice Vol. 1 39–70 (2017).

Since the 1960s, Congress has steadily expanded the crime-fighting reach of the federal government. Unfortunately, the constant drumbeat to “federalize” criminal law by passing more federal statutes, ratcheting up already severe federal punishments, and expanding the federal prison population has accomplished precious little in terms of public safety. The failed drug war— which has left the nation with a federal prison population bursting at the seams, and a drug problem that has never been worse—proves as much. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcement to offenses that are of peculiar concern to the federal government and offenses that defy adequate response within the state system.

Natapoff, Alexandra, Misdemeanors, Reforming Criminal Justice Vol. 1 71–98 (2017).

With over 10 million cases filed each year, vastly outnumbering felonies, the petty-offense process is how most Americans experience the criminal justice system. Characterized largely by speed, informality, and a lack of regulation and transparency, the misdemeanor system generates millions of criminal convictions as well as burdensome punishments that affect employment, housing, education, and immigration. It is also a powerful and problematic governance institution in its own right, producing thousands of wrongful convictions, contributing heavily to the system’s racial skew, and regressively taxing its low-income subjects in order to fund itself. Reform efforts should begin by shrinking this enormous pipeline into the criminal system.

Miron, Jeffrey A., Drug Prohibition and Violence, Reforming Criminal Justice Vol. 1 99–114 (2017).

Drugs and violence might be related because drug use causes violent behavior, because drug trafficking is inherently violent, or because prohibition creates violence by forcing the drug market underground. The main reason for a drugs-violence connection is the third of these three possibilities: Enforcement of drug prohibition increases violence.

Kreit, Alex, Marijuana Legalization, Reforming Criminal Justice Vol. 1 115–137 (2017).

After decades of waging war on marijuana, a majority of Americans have come to see prohibition as a costly failure and believe that legalization is a better option. Since 2012, eight states have passed marijuana-legalization laws. To date, however, legislatures have mostly remained on the sidelines. Every state to legalize marijuana has done so via ballot measure. Legislators should not miss the opportunity to shape this important issue, especially because the details matter a great deal when it comes to marijuana legalization.

Weisberg, Robert, Sexual Offenses, Reforming Criminal Justice Vol. 1 139–165 (2017).

While American penal codes punish a wide variety of sexual offenses, reform efforts and their controversies have focused on the core crime of rape, and in particular on the principle of consent. Over many decades, definitions of rape have moved from egregiously pro-defendant rules requiring strong resistance from complainants to somewhat more nuanced notions of force and ultimately, in many states, to a deceptively simple-looking rule defining rape as sex without consent. Lawmakers and commentators have argued for pushing the line farther to require “affirmative consent,” but that raises proof problems. As a result, at least in the near term and at least outside the college context, the equilibrium might well—and arguably should—settle at the nonconsent point in the continuum.

Zimring, Franklin E., Firearms and Violence, Reforming Criminal Justice Vol. 1 167–185 (2017).

Policy discussions about crime and about firearms control overlap in the United States more substantially, and are debated more passionately, than in any other nation. At either extreme in the debate about guns in the United States one hears confident assertions that gun policy is intimately connected to the volume of crime in the United States and its costs. Those who support restrictions blame the proliferation of firearms for the high rates of death and injury associated with crime in the United States, while those who oppose restrictions argue that the many millions of firearms owned, carried and fired by American citizens are a major force for crime prevention.

Decker, Scott H., Gangs, Reforming Criminal Justice Vol. 1 187–204 (2017).

Interest in gangs by law enforcement, policymakers and the public has grown over the past three decades. Gangs are violent threats not only to the public, but also inside prisons, where they exert control of inmates and distribution of illegal goods and services. Structural, group processes and risk-factor explanations hold promise for understanding the causes of gangs and thereby crafting more-effective responses. Solid evaluation evidence indicates that coordinated responses to gangs that include both law enforcement and the provision of employment opportunities and training have an impact on reducing gang membership.

Chacón, Jennifer M., Criminalizing Immigration, Reforming Criminal Justice Vol. 1 205–228 (2017).

Over the past two decades, criminal justice systems at both the federal and the state level have been repurposed to serve immigration enforcement goals. Many significant problems in the criminal justice system have been both mirrored in and amplified by this criminalization of immigration. Generous immigration reform and the decriminalization of many migration-related offenses are needed to address the resulting problems comprehensively. But more limited reforms within state and federal criminal enforcement systems can help mitigate some of the biggest problems in the current system. This chapter recommends that all law enforcement agencies develop legal guidelines and training that discourage reliance on racial profiling in immigration policing, that states and localities prioritize their own state public safety goals over cooperation with federal immigration enforcement efforts when such efforts undermine those goals, and that state and local laws and practices be revised so as to send appropriate signals of leniency to immigration adjudicators and enforcement agents.

O’Sullivan, Julie Rose, Extraterritoral Jurisdiction, Reforming Criminal Justice Vol. 1 229–250 (2017).

Assume that a Russian citizen hacked into the e-mail of the Democratic National Committee and then provided masses of stolen DNC e-mails to WikiLeaks for publication. This type of unauthorized access and release is unlawful in many countries. But where was the crime “committed”? At the hacker’s keyboard in Russia? Where the DNC’s servers are? Where WikiLeaks’ servers are? Or perhaps where the actual and intended effect of the criminal activity was felt? If it is concluded that this criminal activity took place outside the territory of the United States—that is, extraterritorially—further critical questions include whether Congress has the constitutional power to regulate such conduct, whether Congress intended the anti-hacking statute to apply extraterritorially, and what, if any, due process limits exist on such exercises of criminal jurisdiction. These questions have increasing importance in a world where criminal activity and criminals regularly cross national borders.

Morse, Stephen J., Mental Disorder and Criminal Justice, Reforming Criminal Justice Vol. 1 251–328 (2017).

The criminal law treats some people with severe mental disorders differently at every stage of the criminal process and such people often have special needs in the system. People with severe mental disorders can be treated more humanely at every stage of the criminal justice system without compromising the system’s retributive and crime-prevention functions. Various prescriptions for how to accomplish this goal are offered. In particular, mental health services need substantial improvement in jails and prisons.

Feld, Barry C., Juvenile Justice, Reforming Criminal Justice Vol. 1 329–397 (2017).

During the 1980s and 1990s, states’ juvenile justice policies shifted from a nominally rehabilitative system toward a more punitive and criminalized one. Punitive pretrial detention and delinquency dispositions disproportionately affected minority youths. Notwithstanding juvenile courts’ increasingly penal convergence with criminal courts, states provide delinquents with less adequate procedural safeguards than those afforded adults. Adolescents’ developmentally compromised ability to exercise rights—Miranda, competence to stand trial, waiver of counsel, denial of jury—require greater procedural safeguards in a more legalistic punitive system. Get Tough Era laws transferred more and younger youths to criminal courts for prosecution as adults, emphasized offenses over offender characteristics, and shifted discretion from judges to prosecutors making charging decisions. Criminal court judges sentence transferred youths similarly to other adult offenders. Despite a two-decade drop in serious youth crime, most punitive laws remain in effect. The Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama relied on developmental psychology and neuroscience research, emphasized adolescents’ diminished responsibility, and limited the harshest sentences. States require a more consistent strategy to recognize youthfulness as a mitigating factor—a Youth Discount.


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Policing

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).

McJunkin, Ben A., The Private-Search Doctrine Does Not Exist. Wisconsin Law Review, Vol. 2018, No. 5, 2018.

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.

Beety, Valena Elizabeth, What the Brain Saw: The Case of Trayvon Martin and the Need for Eyewitness Identification Reform. Denver University Law Review, Vol. 90:2, 2012.

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.

Ponomarenko, Maria and Friedman, Barry, Democratic Accountability and Policing, Reforming Criminal Justice Vol. 2 5–25 (2017).

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.

Harmon, Rachel A., Legal Remedies for Police Misconduct, Reforming Criminal Justice Vol. 2 27–50 (2017).

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.

Fradella, Henry F. and White, Michael D., Stop-and-Frisk, Reforming Criminal Justice Vol. 2 51–81 (2017).

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.

Fagan, Jeffrey, Race and the New Policing, Reforming Criminal Justice Vol. 2 83–116 (2017).

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.

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Harris, David A., Racial Profiling, Reforming Criminal Justice Vol. 2 117–152 (2017).

Racial profiling is a real, measureable phenomenon; and it causes real harm to people, and to public safety. It is not just a matter of concern to African-Americans, Latinos, and other people of color, who feel the sting of the practice directly. It is an issue for all Americans who care about fairness, justice, and public order—in short, everyone.

Carbado, Devon W., Race and the Fourth Amendment, Reforming Criminal Justice Vol. 2 153–184 (2017).

Few people, including lawyers, journalists, legislators, educators, and community organizers, understand the enormously important role Fourth Amendment law plays in enabling the very social practices it ought to prevent: racial profiling and police violence. For more than three decades, the Supreme Court has been interpreting the Fourth Amendment to empower the police and limit our freedoms and liberties. Nowhere is this more apparent than in a specific body of Fourth Amendment law that determines whether the Fourth Amendment even applies. The Supreme Court’s conclusion that a range of investigation tactics do not trigger the Fourth Amendment means that police officers can follow us, question us, ask us for our identification or permission to search without any evidence of wrongdoing. These and other forms of police interactions expose all of us, but particularly African Americans, not only to ongoing police surveillance, contact, and social control but to the possibility of violence.

Richardson, L. Song, Police Use of Force, Reforming Criminal Justice Vol. 2 185–208 (2017).

Racial disparities in police uses of force persist. Sometimes these disparities are justified because police are simply responding to objectively threatening conduct. Other times these disparities are the result of police racism. But “racial anxiety” can also enable racial disparities in police uses of force even in the absence of racial animus and even when people of color are acting identically to their white counterparts. Concerns about police racism can influence the behaviors and perceptions of officers and people of color in ways that increase the potential for violence. Consideration of racial anxiety highlights the necessity of transforming policing in order to build community-police trust.

Slobogin, Christopher, Policing, Databases, and Surveillance, Reforming Criminal Justice Vol. 2 209–232 (2017).

Databases are full of personal information that law enforcement might find useful. Government access to these databases can be divided into five categories: suspect-driven; profile-driven; event-driven; program-driven and volunteer-driven. In addition to any restrictions imposed by the Fourth Amendment (which currently are minimal), each type of access should be subject to its own regulatory regime. Suspect-driven access should depend on justification proportionate to the intrusion. Profile-driven access should likewise abide by a proportionality principle but should also be subject to transparency, vetting, and universality restrictions. Event-driven access should be cabined by the time and place of the event. Program-driven access should be authorized by legislation and by regulations publicly arrived-at and evenly applied. Information maintained by institutional fiduciaries should not be volunteered unless necessary to forestall an ongoing or imminent serious wrong.

Leo, Richard A., Interrogation and Confessions, Reforming Criminal Justice Vol. 2 233–258 (2017).

The most important legal and policy reforms for achieving both the elicitation (by police) and admission into evidence (by trial courts) of voluntary and reliable confession evidence are: mandatory full electronic recording of all police interviews and interrogations; improved police training and practice on pre-interrogation investigative procedures; a shift from guiltpresumptive accusatory interrogation techniques that prioritize eliciting confessions above all else to more professional investigative interviewing approaches that prioritize obtaining accurate information above all else; and pretrial reliability hearings to prevent false and unreliable confession evidence from being admitted into evidence at trial and leading to wrongful convictions.

Wells, Gary L., Eyewitness Identification, Reforming Criminal Justice Vol. 2 259–278 (2017).

Mistaken eyewitness-identification testimony is at the heart of a large share of the convictions of people whose innocence was later proven using forensic DNA testing. A considerable amount is now known about how to lower the rate of mistaken identifications through the use of better procedures for conducting identification. But a large share of jurisdictions have still not made significant reforms, and most courts are still using an approach that is largely unsupported by scientific findings.

Richman, Daniel, Informants and Cooperators, Reforming Criminal Justice Vol. 2 279–299 (2017).

The police have long relied on informants to make critical cases, and prosecutors have long relied on cooperator testimony at trials. Still, concerns about these tools for obtaining closely held information have substantially increased in recent years. Informants and cooperators have figured prominently in studies, spurred by DNA exonerations of wrongful convictions. In addition to these reliability concerns is an increasing recognition of broader social costs. The challenge is how to regulate how informants and cooperators are used while still recognizing the need to use them.


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Pretrial and Trial Processes

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).

Beety, Valena Elizabeth, Prosecuting Opioid Use, Punishing Rurality. Ohio State Law Journal, Vol. 79, 2019.

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.

Beety, Valena Elizabeth and Kreit, Alex and Boustead, Anne and Goulka, Jeremiah and Scott, Caitlin and Beletsky, Leo, Drug-Induced Homicide Defense Toolkit. Ohio State Public Law Working Paper No. 467.

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.

Oliva, Jennifer and Beety, Valena Elizabeth, Regulating Bite Mark Evidence: Lesbian Vampires and Other Myths of Forensic Odontology. 94 Washington Law Review (2019, Forthcoming).

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.

Beety, Valena Elizabeth and Oliva, Jennifer, Evidence on Fire. 97 North Carolina Law Review 483 (2019).

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.

Oliva, Jennifer and Beety, Valena Elizabeth, Discovering Forensic Fraud. 112 Northwestern University Law Review 121 (2017).

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.

Beety, Valena Elizabeth, Changing the Culture of Disclosure and Forensics. Washington and Lee Law Review Online, Vol. 73, No. 2, 2017.

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.

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Beety, Valena Elizabeth, Wrongful Convictions and the National Academy of Sciences: From Forensics to Eyewitness Identification. 82 TENN. L. REV. 975 (2015).

In creating a test to admit eyewitness identifications, the Supreme Court in Manson v. Brathwaite held as its most important value the reliability of this evidence. Thirty-five years later, hundreds of tests, research projects, and papers have shown exactly how unreliable the Court’s admissibility test is. The Supreme Court has failed to live up to its own standard.

The National Academy of Sciences new Report, Identifying the Culprit: Assessing Eyewitness Identification, may be the needed impetus to change the nationally governing standard. The Report takes readers above and beyond the current Manson test. Indeed, Identifying the Culprit predicts a national impact on our executive, judicial, and legislative branches. Five years from today, the U.S. Supreme Court may use these findings to completely overhaul the admission of eyewitness testimony in the courtroom.

This piece provides a brief sketch of a prior NAS Report, Strengthening Forensic Science in the United States: A Path Forward, and the impact it has had on all branches of government. The growing influence and reforms of the field of forensic science then lead into questions of the reliability of eyewitness evidence. The role of innocence cases ultimately culminates in a discussion of Identifying the Culprit: Assessing Eyewitness Identification and the impact of these connected Reports.

Beety, Valena Elizabeth, Judicial Dismissal in the Interest of Justice. Missouri Law Review, Vol. 80, No. 3, 2015.

Of the 1.6 million Americans in prison, most inmates are serving sentences for non-violent offenses. Who is responsible? Hyper-incarceration is not simply due to outdated drug laws or stringent sentencing. Courts in the last thirty years have taken a lackadaisical back seat. Prosecutors are failing in their gate-keeping function nationally. Most simple arrests are prosecuted without even evaluating the substance of the case. Police stops can snowball into convictions through our plea system. In short: the criminal justice system provides no systemic accountability for its own results.

This Article focuses on this lack of accountability and proposes a conceptual shift as well as a practical solution: pivoting accountability to the courts. Twelve states recognize the capacity of judges to dismiss cases in the interest of justice. Dismissal in the interest of justice allows a court to dismiss a procedurally proper, but unjust or unjustifiable, cause of action. Dismissing cases in the interest of justice thus can provide a check where few exist for overzealous prosecutions, race-based patrolling, and overuse of “three strikes” laws. Dismissals can require more consistency and reliability in evidence and in state prosecutions, whether on the misdemeanor or felony level. And ultimately all states can create this capacity through state laws and rules of criminal procedure.

Transforming our prison paradigm moves beyond shifting individual laws; court-initiated dismissals address the underlying problem of accountability. By finding a practical application already in use by some states, this Article creates a useful framework for both ends of the spectrum: conceptually reforming our system while practically assisting individual cases and lives.

Serota, Michael Eli, Stare Decisis and the Brady Doctrine. Harvard Law & Policy Review, Vol. 6, p. 415, 2011.

An array of federal district court judges frustrated with the limited scope of the Supreme Court’s approach to constitutionally mandated disclosure - otherwise known as the Brady doctrine - has reinterpreted it so as to eliminate the materiality requirement in the pretrial context. After witnessing the prosecutorial abuse and chronic underdisclosure that Brady’s materiality requirement invites, as well as observing the failure of discovery reformers to remedy the doctrine’s shortcomings through other channels, these judges have provided a judicial solution by ignoring Supreme Court precedent in order to avoid the limitation on the government’s disclosure obligation that the materiality requirement creates. This practice amounts to nothing less than an abrogation of stare decisis based on the view that policy concerns necessitate this much-needed reform of the criminal discovery system. The question that remains - and that I explore in this Essay - is whether the instrumentalism underlying their decisions is acceptable, or even desirable, in light of the constitutional and normative foundations upon which stare decisis rests. This Essay proceeds in three parts. Part I provides a brief introduction to the Brady doctrine with a particular emphasis on the problems caused by the materiality standard’s application in the pretrial context, and then discusses the unsuccessful efforts that have been made to reform the rules of discovery governing the pretrial disclosure of evidence in criminal cases. Part II first contrasts the Supreme Court’s post-Brady cases with the doctrinal approach that some trial judges have taken to eliminate Brady’s materiality requirement in the pretrial context, and then concludes with a discussion of several federal district and appellate court decisions that have rejected this approach to Brady reform. Part III presents the doctrine of stare decisis and discusses its constitutional foundations as well as the rule of law and judicial economy benefits it redounds to our legal system. With these benefits in mind, I then explore the viability of the instrumentalist approach to stare decisis employed by the trial judges who have eliminated the materiality requirement. I conclude that it is not viable, and that criminal discovery reform must therefore proceed through other means.

Fairfax, Jr., Roger A., Grand Jury, Reforming Criminal Justice Vol. 3 5–19 (2017).

The grand jury’s dual role of “sword” (as a potent investigative tool to combat crime) and “shield” (as an ostensible protector of defendants’ rights) should make it a celebrated feature of our criminal justice system. However, today’s grand jury is widely criticized as a vestige of a time before professional prosecutors and additional safeguards were available to filter meritless allegations. Also, many critics believe that the grand jury’s “shield” role has all but receded and has given rise to an era in which the grand juries rarely, if ever, refuse to consent to the prosecutor’s proposed charges. What remains, many argue, is simply an investigative tool of the prosecutor masquerading as a protection for the defendant. A number of thoughtful reforms have the potential to revitalize the grand jury and help reclaim its significance.

Stevenson, Megan and Mayson, Sandra G., Pretrial Detention and Bail, Reforming Criminal Justice Vol. 3 21–47 (2017).

Our current pretrial system is irrational, inefficient and unjust: The dominance of money bail means that wealthy defendants pay for freedom while the poor sit in jail—regardless of the risk each defendant presents. Pretrial detainees account for 95% of the growth in the jail population over the last 20 years. Many of those detained are low-level offenders who cannot post small amounts of bail. Research suggests that this can actually lead to an increase in crime, since even short periods in jail can destabilize lives through loss of employment or housing. The current state of pretrial practice leaves ample room for improvement. To achieve lasting change, reformers should pursue reform strategies that are supported by empirical research.

Wright, Ronald F., Prosecutor Institutions and Incentives, Reforming Criminal Justice Vol. 3 49–72 (2017).

Criminal prosecutors must do a complex job, one that is crucial to public safety and the quality of justice. Unfortunately, they must do so under circumstances that are tilted toward failure. The typical local prosecutor, working within the current legal framework, must “fly blind” and “fly solo.” The prosecutor flies blind because so little information is available about overall trends in case processing, prevention programs, corrections costs, and voter concerns about public safety. It is equally troubling that prosecutors fly solo. Judges, police, defense attorneys, and community groups have relatively little influence over the diversion, charge selection, and case resolution choices of individual prosecutors.

Turner, Jenia I., Plea Bargaining, Reforming Criminal Justice Vol. 3 73–99 (2017).

Plea bargaining dominates the criminal process in the United States today, yet it remains highly controversial. Supporters defend it on the grounds that it expedites cases, reduces processing costs, and helps authorities obtain cooperation from defendants. But critics contend that it can generate arbitrary sentencing disparities, obscure the true facts, and even lead innocent defendants to plead guilty. Lack of transparency and limited judicial involvement frustrate attempts to correct flaws in the process.

Pfaff, John F., Prosecutorial Guidelines, Reforming Criminal Justice Vol. 3 101–120 (2017).

Reformers are increasingly aware of the central role prosecutors have played in driving up the U.S. prison population. Yet few if any reform efforts have sought to directly restrict prosecutorial power. Reformers should design binding charging and plea bargaining guidelines to limit who prosecutors can charge, what they can charge them with, and what sentences they can demand at trial or during plea bargaining. Such guidelines could advance public safety, reduce the role of race and other impermissible factors, and help smartly reduce our prison population size.

Primus, Eve Brensike, Defense Counsel and Public Defense, Reforming Criminal Justice Vol. 3 121–145 (2017).

Public-defense delivery systems are grossly inadequate. Public defenders are routinely forced to handle thousands of cases per year even though the American Bar Association says no attorney can effectively handle more than 400 misdemeanors per year. Defenders lack funding for investigation or expert assistance. They aren’t adequately trained, and there is little oversight of their work. In many jurisdictions, the public-defense function is not independent of the judiciary or the elected branches, which compromises zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people get convicted; precious resources are wasted; and the legitimacy of the system is undermined. Effective reforms are only possible if policymakers address how defense delivery systems are structured, whether they are independent, the sources and amount of defense funding, and the adequacy of training and oversight mechanisms.

Brown, Darryl K., Discovery, Reforming Criminal Justice Vol. 3 147–169 (2017).

All U.S. criminal justice systems have evolved from “trial by surprise” models to systems more focused on finding the truth, and parties are now required to make at least some modest disclosures of certain kinds of evidence before trial. But the rules remain remarkably diverse, and there is nothing close to a standard American model of pretrial criminal discovery. And because trials are now rare—nearly all convictions are the result of a plea bargain—the pretrial stage is the only place in which the adversarial process operates and in which parties can evaluate evidence. Disclosure failures have led to wrongful convictions, and experience shows that risks related to certain disclosures are easily managed. States that still adhere to outdated disclosure policies are encouraged to require more evidence to be exchanged between prosecutors and defense attorneys prior to plea bargaining.

Murphy, Erin, Forensic Evidence, Reforming Criminal Justice Vol. 3 171–192 (2017).

The field of forensic science has come under increasing scrutiny in the past decades. Two blueribbon government expert panels declared common methods of forensic science to be scientifically unsound or statistically unsupported. DNA-exoneration cases revealed the pervasive problem of misuse of forensic evidence. And a series of laboratory scandals have called into question both the competence and the integrity of the institutions and actors who deliver forensic findings. A series of systemic changes, including the overdue rejection of some long-standing methods of forensic science, is the only way to minimize the risk of wrongful conviction and restore faith in the reliability of scientific evidence in the criminal justice system.

Garrett, Brandon L., Actual Innocence and Wrongful Convictions, Reforming Criminal Justice Vol. 3 193–210 (2017).

The National Registry of Exonerations has documented more than 2,000 individuals who have been exonerated in the United States in just the past 20 years. While in decades past it was thought to be rare if not impossible to convict the innocent, large numbers of exonerations in the U.S. have prompted wholesale re-examination of traditional rules that limited ability to raise new evidence of innocence post-conviction, as well as investigative procedures that did not accurately collect or document evidence.

Butler, Paul, Race and Adjudication, Reforming Criminal Justice Vol. 3 211–226 (2017).

At virtually every step of adjudication—charging, setting bail, plea-bargaining, jury selection, trial, and sentencing—law enforcement officials exercise discretion in ways that disproportionately harm people of color. Studies have shown that African American and Latino defendants are, for example, significantly more likely than white defendants to be arrested on charges that are not prosecutable, to be detained pretrial, and to be wrongly convicted. The Supreme Court has made it very difficult to challenge racial discrimination in the criminal process, effectively silencing a defendant’s claim to equal protection of the law unless “smoking gun” evidence of racist intent can be provided. Given inadequate legal recourse, efforts to reduce racial discrimination in criminal adjudication should focus on limiting contact between people of color and law enforcement officials and constraining those officials’ discretion.

Cassell, Paul G., Crime Victims' Rights, Reforming Criminal Justice Vol. 3 227–252 (2017).

Over the last 40 years, a consensus has developed around the country on certain core rights for crime victims. Included in the core are the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that victims have a means for enforcing these rights. Strengthened enforcement language in state constitutions and, ultimately, perhaps placing victims’ rights in the United States Constitution offer the best prospects for fully protecting crime victims’ interests in the criminal justice system.

King, Nancy J., Appeals, Reforming Criminal Justice Vol. 3 253–272 (2017).

Three costly and persistent problems plague judicial review in state criminal cases: its failure to correct wrongful convictions, the absence of supervision of lower courts’ handling of certain categories of issues of particular public concern, and unnecessary delay. Suggested reforms include steps to identify and remedy errors that research has shown evade correction, provide appellate vigilance of activity in the lower courts that too often escapes oversight, and reduce delay in appellate processes.

Boldt, Richard C., Problem-Solving Courts, Reforming Criminal Justice Vol. 3 273–304 (2017).

Problem-solving courts emerged in the last part of the 20th century as a pragmatic response to perceived dysfunction within the criminal justice system. Two of the most prominent examples are drug treatment courts and mental health courts. The research on problem-solving courts indicates that this approach poses significant risks as well as some potential benefits. Policymakers are encouraged to rely on a “risk-need-responsivity” model that identifies offenders who would benefit most from criminal system-located rehabilitative interventions and identifies the particular interventions that are most likely to reduce reoffending in a given case. Under this model, they should minimize the use of problem-solving courts where the benefits are outweighed by their costs, shift the focus of problem-solving courts from low-level drug offenses and other relatively minor infractions to higher-risk offenders, and adopt procedures for these courts to prevent the collapse of rehabilitative intentions into overly punitive results.


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Punishment, Incarceration, and Release

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).

Serota, Michael Eli, Second Looks & Criminal Legislation, 17 Ohio State Journal of Criminal Law __ (forthcoming 2020) (peer reviewed).

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.

McJunkin, Ben A. and Prescott, J.J., Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders. New Criminal Law Review, Vol. 21, Summer 2018 (Forthcoming); U of Michigan Law & Econ Research Paper Paper No. 18-016.

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.

Serota, Michael Eli, Proportional Mens Rea and the Future of Criminal Code Reform. 52 Wake Forest Law Review 1201 (2017).

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.

Beety, Valena Elizabeth and Aloi, Michael and John, Evan, Emergence From Civil Death: The Evolution of Expungement in West Virginia. West Virginia Law Review, Vol. 117, No. 63, 2015.

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.

Beety, Valena Elizabeth, Risk and Execution: The Local Impact of Capital Cases on Mississippi Counties. 82 Miss. L.J. 1337 (2013).

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.

Murphy, Jeffrie G., Retribution, Reforming Criminal Justice Vol. 4 7-18 (2017).

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.

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Nagin, Daniel S., Deterrence, Reforming Criminal Justice Vol. 4 19-35 (2017).

The criminal justice system in a democratic society serves many vital social purposes. Among the most important is deterring crime. Going back to the pioneering work of the Enlightenment philosopher Cesare Becarria, deterrence theorists have distinguished between the certainty and severity of punishment. Conventional wisdom, backed by considerable research evidence, is that the certainty of punishment, not its severity, is the more effective deterrent. Further refined, it is the certainty of apprehension not the severity of the ensuing consequences that is the more effective deterrent. This conclusion has several important implications for policy. First, it calls into question the effectiveness of over four decades of U.S. crime-control policy predicated on the premise that lengthy prison sentences are an effective deterrent to crime. Second, according to the revised certainty principle, crime-prevention policy should instead focus on bolstering the certainty of apprehension.

Bushway, Shawn D., Incapacitation, Reforming Criminal Justice Vol. 4 37-54 (2017).

There are many different purposes of sentencing in criminal law, including incapacitation, which reduces crime by incarcerating criminals. But incapacitation should not be relied on as a primary motivation for a broad-based incarceration regime. Incapacitation cannot be used to justify the current levels of incarceration in the United States; “release valve” policies to reduce the prison population in the short term should focus on releasing individuals who are at lowest risk for offending; and policymakers should be aware of the relative incapacitative effects of different policies, even if their main motives do not include incapacitation.

Clear, Todd R. and Austin, James, Mass Incarceration, Reforming Criminal Justice Vol. 4 55-75 (2017).

A bipartisan consensus has developed that the U.S. should reduce the number of people in prison, and most states have proposals on the table to accomplish this aim. The framework known as The Iron Law of Prison Populations demonstrates (a) why most of these current proposals will not lead to significant reductions in prison numbers, and (b) how changes in prison entry rates and length of stay can produce significant decreases in incarceration. Current studies give confidence that large declines in the number of people in prison will not endanger the public.

Monahan, John, Risk Assessment in Sentencing, Reforming Criminal Justice Vol. 4 77-94 (2017).

One way to reduce mass incarceration and the fiscal and human sufferings intrinsic to it is to engage in a morally constrained form of risk assessment in sentencing offenders. The assessment of an offender’s risk of recidivism was once a central component of criminal sentencing in the United States. In the mid-1970s, however, sentencing based on forward-looking assessments of offender risk was abolished in many jurisdictions in favor of set periods of confinement based solely on backward-looking appraisals of offender blameworthiness. This situation is rapidly changing, however. After a hiatus of 40 years, there has been a resurgence of interest in risk assessment in criminal sentencing. Across the political spectrum, advocates have proposed that mass incarceration can be shrunk without simultaneously jeopardizing the historically low crime rate if we put a morally constrained form of risk assessment back into sentencing.

Berman, Douglas A., Sentencing Guidelines, Reforming Criminal Justice Vol. 4 95-115 (2017).

For the first three-quarters of the 20th century, there was vast discretion in both state and federal sentencing. There has since been extraordinary evolution in the laws, policies, politics, and practices of sentencing systems nationwide. Though the uneven and often uninspired experiences of the federal system have often cast a negative light on the “guideline model” of sentencing reform, there still is no serious dispute that a well-designed guideline structure provides the best means for the express articulation of sound standards to inform and shape individual sentencing outcomes and to promote transparency and the rule of law throughout a jurisdiction’s sentencing system. There are challenges to designing and managing the particulars of an effective guideline sentencing system, but these are challenges that lawmakers should embrace, not avoid.

Luna, Erik, Mandatory Minimums, Reforming Criminal Justice Vol. 4 117-145 (2017).

Mandatory minimum sentencing laws eliminate judicial discretion to impose sentences below the statutory minimum. These laws can produce punishment that is unjust in its disproportionality. Studies have also shown that mandatory minimums are unlikely to reduce future crime. As a practical matter, mandatory minimums transfer sentencing power from judges to prosecutors, who may place unfair pressures on defendants to plead guilty while also distorting the legal framework of separated powers. The laws tend to create sentencing disparities by treating similar offenders differently and different offenders the same. Because of their inflexible nature, mandatory minimums encourage manipulations of the system and even outright deceit. For these and other reasons, policymakers should not create new mandatory minimums or expand existing ones. Instead, officials should limit the scope of these laws, enact mechanisms to prevent unjust application of mandatory minimums, empower correctional or parole authorities to reconsider lengthy sentences, and, ultimately, eliminate many mandatory minimums.

Steiker, Carol S. and Steiker, Jordan M., Capital Punishment, Reforming Criminal Justice Vol. 4 147-167 (2017).

Despite extensive constitutional doctrines regulating capital punishment, state systems are still fraught with arbitrariness, inaccuracy, and unfairness. Although many of the problems are intractable, some can be addressed by improving capital representation, centralizing prosecutorial charging decisions, and limiting the application of the death penalty against people with serious mental illness.

Spohn, Cassia, Race and Sentencing Disparity, Reforming Criminal Justice Vol. 4 169-185 (2017).

Although the overt and widespread racism that characterized the operation of the criminal justice system during the early part of the 20th century has largely been eliminated, racial disparities in sentencing and punishment persist. Research conducted during the past four decades concludes that the continuing racial disparity in incarceration rates and use of the death penalty can be attributed to the policies pursued during the war on drugs and to criminal justice officials’ use of race-linked stereotypes of culpability and dangerousness.

Tonry, Michael, Community Punishments, Reforming Criminal Justice Vol. 4 187-203 (2017).

The case for use of community punishments in a rational society is a no-brainer. Compared with confinement in a jail or prison, they are less expensive to administer, less likely to lead to future offending, and more humane. They do less collateral damage to the lives and futures of offenders and their loved ones. They can be scaled to the seriousness of crimes for which they are imposed. When well-managed, well-targeted, and adequately funded, they result in lower reoffending rates. Those are among the reasons why most Western countries use community punishments much more, and imprisonment much less, than do American jurisdictions.

Colgan, Beth A., Fines, Fees, and Forfeitures, Reforming Criminal Justice Vol. 4 205-234 (2017).

The use of fines, fees and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing, however, that inadequately designed systems for the use of such economic sanctions distort criminal justice priorities, exacerbate financial vulnerability of people living at or near poverty, increase crime and jail overcrowding, and even decrease revenue.

Cullen, Francis T., Correctional Rehabilitation, Reforming Criminal Justice Vol. 4 235-260 (2017).

Beginning in the late 1960s, the rehabilitative ideal suffered a stunning decline, sharply criticized for permitting inequality in sentencing, coercion inside prisons, and treatment programs that did not work to reduce recidivism. The get-tough era that ensued proved to be a policy nightmare, marked by mass imprisonment, the intentional infliction of pain on offenders, and ineffective interventions. A consensus has emerged among elected officials of both parties that reforms are needed that take a more balanced crime-control approach that includes efforts to improve offenders’ lives. Two important considerations favor the movement of policy in this direction. First, scientific advances have been achieved that identify a treatment paradigm—the risk-need-responsivity (RNR) model—capable of lowering reoffending. Second, opinion polls show clearly that the public supports offender rehabilitation as a core correctional goal.

Dolovich, Sharon, Prison Conditions, Reforming Criminal Justice Vol. 4 261-293 (2017).

In American prisons, two of the worst pathologies—hypermasculine performance and gang activity—are best understood as strategies of self-help engaged in by people who cannot trust the prison authorities to keep them safe. If we want the people we incarcerate to grow and change, we need to design and operate the prisons so that people can be in company with others without needing to be constantly afraid. There are several strategies prison administrators can pursue to reduce the threat of violence in men’s prisons and provide access to meaningful pursuits that can give individual prisoners a sense of purpose.

Schlanger, Margo, Prisoners with Disabilities, Reforming Criminal Justice Vol. 4 295-323 (2017).

A majority of American prisoners have at least one disability. So how jails and prisons deal with those prisoners’ needs is central to institutional safety and humaneness, and to reentry success or failure. Statutory and constitutional law mandate non-discrimination, accommodation, integration, and treatment—but jails and prisons have been very slow to learn the most general lesson of these strictures, which is that officials must individualize their assessment of and response to prisoners with disabilities. What is needed are programs that bridge the wall separating the inside and outside of prison, with respect to record-keeping, personnel, and finances; together, these have the potential to greatly improve care, and the lives and prospects, of prisoners with disabilities.

Millemann, Michael and Bowman-Rivas, Rebecca and Smith, Elizabeth, Releasing Older Prisoners, Reforming Criminal Justice Vol. 4 325-339 (2017).

The rising number of older prisoners is a major factor in the nation’s exponential prison growth over the last four decades. Many of the older prisoners have redeemed their lives but will die behind bars because of restrictive changes in sentencing and corrections laws. These are America’s most expensive prisoners, costing up to or more than $60,000 per prisoner a year. The continued incarceration of many serves no public-safety purpose; indeed, it undermines public safety by wasting scarce resources, particularly prison beds. Over the last four years in Maryland, judges have implemented a 2012 appellate court decision by approving the negotiated releases on probation of over 160 long-incarcerated lifers. To date, none has been convicted of a new crime other than driving/traffic offenses.

Turner, Susan, Reentry, Reforming Criminal Justice Vol. 4 341-369 (2017).

With an enormous prison population, the United States sees large numbers of individuals going into—and out of—incarceration each year. More than 650,000 leave prison annually, but more than two-thirds are rearrested for a new crime within three years of release. Although there are many reasons offenders return to crime, one aspect gaining notice is the difficulty released prisoners face integrating back into society. Challenges include poor educational achievement, employment difficulties, limited access to mental- and public-health services, housing restrictions, and limited civic and community opportunities.

Chin, Gabriel J., Collateral Consequences, Reforming Criminal Justice Vol. 4 371-395 (2017).

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits—and many are applicable for life. Collateral consequences should be: (1) collected and published, so that defendants, lawyers, judges and policymakers can know what they are; (2) incorporated into counseling, plea bargaining, sentencing and other aspects of the criminal process; (3) subject to relief so that individuals can pursue law-abiding lives, and regain equal status; and (4) limited to those that evidence shows reasonably promote public safety.

Logan, Wayne A., Sex Offender Registration and Notification, Reforming Criminal Justice Vol. 4 397-417 (2017).

Since the 1990s, U.S. jurisdictions have had laws in place requiring that convicted sex offenders, after their release from confinement, provide identifying information to authorities, which is then made available to community residents in the dual hope that they will undertake safety measures and that registrants will be deterred from reoffending. The laws remain popular with the public and political actors alike, but have long been criticized for being predicated on empirical misunderstandings, most notably that sex offenders as a group recidivate at higher rates than other offenders and that most sexual offending involves strangers. Today, moreover, a considerable body of social-science research calls into question whether registration and notification achieve their avowed public safety goals.

Osler, Mark, Clemency, Reforming Criminal Justice Vol. 4 419-439 (2017).

Clemency is deeply rooted in the history of Western civilization. American clemency systems are as varied as the jurisdictions themselves. While the contemporary federal system is a poor exemplar, there are worthwhile examples to be found in the states and in a federal experiment in the wake of the Vietnam War. Commonalities exist between the higher-functioning processes, including the use of a horizontal and deliberative process rather than one that is vertical and rooted in sequential review.


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