Criminal Law
The Effort to Reform the Federal Criminal Justice System
This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future reforms.
Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations
This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional-approval process that informs applicants whether the bar intends to admit them before they begin law school.
What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence
Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of a just prison sentence.
Who Locked Us Up? Examining the Social Meaning of Black Punitiveness
In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America, Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritarianism contextualizes black punitive sentiment within antisubordination criminal law theory.
Why Is It Wrong To Punish Thought?
It is an age-old maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, and unexecuted intentions. Yet its justification is something of a mystery. This Essay argues that each of the prevailing justifications is deficient and proposes a novel one.
Dangerous Defendants
Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equally dangerous defendants and non-defendants.
Policing Through an American Prism
Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often accompanied by broader calls for reform. Tensions often run high after officer involved shootings of unarmed civilians, and minority communities, law enforcement, and politicians bring different perspectives to both the individual events and broader policy issues.
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
Capital Jurors in an Era of Death Penalty Decline
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decade, support steadily declined in national and state polling. Today, the public appears fairly evenly split in its views on the death penalty. Still, voters in Nebraska and California recently rejected measures to end the death penalty, and in California voters instead adopted a measure intended to hasten post-conviction review of death penalty cases and executions, although the California Supreme Court has stayed that measure pending further review. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.
Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water
In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report”). This report raises familiar issues and recommendations. In 2009, the National Research Council (NRC) released Strengthening Forensic Science in the United States: A Path Forward, a report on the state of forensic science (“NRC Report”). The NRC Report found that numerous forensic science disciplines relied on deficient scientific foundations, interpretative procedures lacked rigor, analysts took inadequate measures to avoid error and bias, and forensic examiners testified with unwarranted certainty. Research suggests that the NRC Report has had a marked impact on defendants’ awareness of the fallibility of “soft” forensic disciplines, which has led to a number of post-conviction challenges to forensic evidence. Unfortunately, these challenges have rarely been successful. Perhaps as a result, forensic disciplines have advanced little in the intervening seven years to address the NRC Report’s concerns.
From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions
Innocence and Override
For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down part of Florida’s capital sentencing scheme in January because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” In response, the Florida legislature eliminated override in March, and the Delaware Supreme Court invalidated its own state’s override system on August 2, leaving Alabama as the only state that still permits the practice. Override in Alabama has been attacked on other grounds as well; in 2013, two Justices of the United States Supreme Court expressed Eighth Amendment concerns that Alabama overrides are arbitrary and linked to political pressure.