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Journal of Criminal Law and Criminology
Journal Prestige (SJR): 0.336  Citation Impact (citeScore): 1 Number of Followers: 45  Subscription journalISSN (Print) 0091-4169 Published by Northwestern University  [6 journals]
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- Beyond Due Process: An Examination of the Restorative Justice Community
Courts of Chicago-
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Authors: Jackie O'Brien
Abstract: As American society has reckoned with the harmful effects of mass incarceration, there has been a push to consider alternative forms of achieving justice. Restorative justice is one such method. A transformative approach to conflict resolution inspired by the traditions and practices of indigenous peoples, restorative justice offers a comprehensive means of addressing harm, emphasizing the community, rather than the single act that caused harm. Many jurisdictions and communities have turned to restorative justice to divert cases from the punitive criminal legal system. While there are variations in programs and approaches, many communities integrate restorative justice practices as a means of addressing harm caused by young people. Applying a restorative approach, these initiatives seek to undermine the harmful, life-long effects that interaction with the criminal legal system imposes upon young people.These restorative alternatives operate against the backdrop of the punitive system, leading scholars, practitioners, and community members to raise concerns about the lack of procedural protections in place for individuals proceeding through these diversionary programs. Because the proceedings are less adversarial in nature, the legal community has sounded the alarm about the potential for self-incrimination, coercion, and less zealous advocacy by counsel. This unease is further compounded by the fact that failure to complete the requirements of these programs can lead to a referral back to the traditional criminal legal system.The Restorative Justice Community Court of Chicago (RJCC) is one such alternative. Created in 2017, there are now three RJCCs operating in the North Lawndale, Englewood, and Avondale communities. This Comment seeks to analyze the due process concerns raised by members of the legal and restorative justice communities through the lens of the North Lawndale RJCC. Drawing on knowledge gained through my personal observations and interviews, it is clear that due process violations do not present a substantial threat to the success of the RJCC. Programs like the RJCC operate in a gray zone between the legal rigidity of the criminal legal system and the community-oriented approach adopted by the restorative justice community. This framework urges us to evaluate these programs through an alternative lens so that we can better understand their contributions to furthering justice while remaining aware of their shortcomings to create fully restorative spaces.
PubDate: Wed, 23 Aug 2023 21:27:48 PDT
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- Casting a Ballot for Change: How to Overcome Jail Policy Deficiencies and
the O’Brien Precedent to Expand Voting Rights for Jailed Individuals-
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Authors: Lorellee Kampschnieder
Abstract: Prior to the 2020 election, lawmakers in several states sought to expand voting rights for individuals with felony convictions, and while this work is important, a large swath of voters who legally never lost the right to vote are still unable to do so because they are detained in jail. These individuals, often detained prior to trial, have the right to vote pursuant to a 1974 Supreme Court ruling in O’Brien v. Skinner. However, despite the clear legal precedent protecting voting rights for those in jail, the right remains unrealized for most incarcerated individuals due to numerous barriers. Some localities, such as the Cook County jail, have taken steps to provide access to voting to those in jail. However, a multi-faceted approach using policy and legal solutions is necessary to address disenfranchisement in jail. This Comment first examines the extent of disenfranchisement in jail by showing that disenfranchisement specifically targets indigent individuals and minorities. It also reveals the specific barriers incarcerated individuals face when trying to vote from jail. Next, this Comment reviews and critiques the existing legal landscape of voting rights for those in jail stemming from the O’Brien case. Finally, this Comment offers potential legal and policy solutions that can redress the rights violations faced by those in jail who are unable to vote.
PubDate: Wed, 23 Aug 2023 21:27:47 PDT
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- Are Police Officers Bayesians' Police Updating in Investigative Stops
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Authors: Jeffrey Fagan et al.
Abstract: Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, the behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals—constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation—should signal to officers the features of a stop that increase its rewards or benefits. Having formed a subjective estimate of success (i.e., prior beliefs), officers should observe their outcomes in subsequent encounters and form updated probability estimates, with specific features of the event, with a positive weight on those features. Officers should also learn the features of unproductive stops and adjust accordingly. A rational actor would pursue “good” or “productive” stops and avoid “unproductive” stops by updating their knowledge of these features through experience.We analyze data on 4.9 million Terry stops in New York City from 2004–2016 to estimate the extent of updating by officers in the New York Police Department. We compare models using a frequentist analysis of officer behavior with a Bayesian analysis where subsequent events are weighted by the signals from prior events. By comparing productive and unproductive stops, the analysis estimates the weights or values—an experience effect—that officers assign to the signals of each type of stop outcome. We find evidence of updating using both analytic methods, although the “hit rates”—our measure of stop productivity including recovery of firearms or arrests for criminal behavior—remain low. Updating is independent of total officer stop activity each month, suggesting that learning may be selective and specific to certain stop features. However, hit rates decline as officer stop activity increases. Both updating and hit rates improved as stop rates declined following a series of internal memoranda and trial orders beginning in May 2012. There is also evidence of differential updating by officers conditional on a variety of features of prior and current stops, including suspect race and stop legality. Though our analysis is limited to NYPD stops, given the ubiquity of policing regimes of intensive stop and frisk encounters across the United States, the relevance of these findings reaches beyond New York City. These regimes reveal tensions between the Terry jurisprudence of reasonable suspicion and evidence on contemporary police practices across the country.
PubDate: Wed, 23 Aug 2023 21:27:46 PDT
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- Restorative Justice Diversion as a Structural Health Intervention in the
Criminal Legal System-
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Authors: Thalia González
Abstract: A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new and dynamic scholarly engagement.This Article initiates a two-pronged interdisciplinary project at the nexus of criminal law, public health, and restorative justice. First, it seeks to make visible an often-unnamed recursive theoretical framework—health inequities influence carcerality and carcerality influences health inequities. Second, it recognizes a gap in research, public discourse, and policy and specifically intervenes to examine restorative justice diversion in a manner that neither the legal nor public health fields have before. More precisely, it locates restorative justice diversion in the framework of structural health interventions.Synthesizing multiple strands of research, this Article departs from the traditional understanding of upstream criminal justice interventions by identifying and mapping not only direct health outcomes of participation in restorative justice diversion but also how such interventions in the criminal legal system may alter the larger social context by which health disparities emerge and persist. This project's central aims are to: prioritize diminishing exposure to the criminal legal system; expand non-carceral measures for safety, accountability, community healing, and wellbeing; and, consequently, substantively impact racial health inequities.
PubDate: Wed, 23 Aug 2023 21:27:46 PDT
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- Policing the Danger Narrative
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Authors: Avlana K. Eisenberg
Abstract: The clamor for police reform in the United States has reached a fever pitch. The current debate has mainly centered around questions of police function: What functions should police perform, and how should they perform them to avoid injustice and unnecessary harm' This Article, in contrast, focuses on a central aspect of police culture—namely, how police envision their relationship to those policed. It exposes the vast reach of a deeply engrained “danger narrative” and demonstrates the disastrous consequences that this narrative has helped to bring about. Reinforced by police training, codified by courts, and broadly deployed, the danger narrative is an “us-versus-them” ideology that envisions “them”—all persons whom police are observing, investigating, detaining—as a lethal danger to “us”—law enforcement personnel. Structural and functional reforms have little hope of succeeding unless this toxic narrative can be displaced.The Article first explains the content of the danger narrative and its centrality both to policing and the law of policing. It then scrutinizes the narrative, finding that its core claims about the perils of policing are substantially exaggerated. The Article further explains how, ironically, these exaggerated claims actually create danger that could otherwise be avoided, and thus serve as an illegitimate “bootstrapping” argument for uses of excessive force. More troublingly still, the purportedly empirical danger narrative embeds a previously unexamined and entirely untenable normative proposition: Namely, that it is better for scores of suspects to be unjustifiably injured or killed by police than for any police officer to be injured.The Article concludes with a call for a new narrative frame to address both the empirical and normative pitfalls of the danger narrative and to permit meaningful police reform to take root. Drawing on insights from communitarian theory, and from such fields as medicine and aviation, it proposes institutional reforms that would promote core values of professionalism, including the adoption of data-driven, evidence-based practices, while also undermining the danger narrative’s pernicious us-versus-them ideology by cultivating empathy and reimagining police-community partnerships. Ultimately, the prospect of better and safer policing hinges on the adoption of these and other measures to inculcate in police departments a more accurate depiction of the real risks of in-the-line-of-duty violence.
PubDate: Wed, 23 Aug 2023 21:27:44 PDT
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- Like Putting Lipstick on a Pig: Why the History of Crime Control Should
Compel the Prohibition of Incentivized Witness Testimony Under Fundamental
Fairness Principles-
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Authors: Caleb Linton
Abstract: Among Western nations, American courts remain uniquely permissive to the routine law enforcement practice of offering witnesses incentives to testify for the State in criminal trials. Despite laws and ethical rules roundly prohibiting the practice and recurrent skepticism of incentivized testimony in the English common law tradition, American judges have excused the practice based on pragmatism, developing legal fictions to exempt prosecutors from the general prohibition. However, basic common sense, backed by recent empirical scholarship, should alarm participants in the criminal legal system to a severely heightened risk of perjury wherever the prospect of reward compels testimony. Whether law enforcement offers these incentives in the form of cash payments, material rewards, reduced sentencing for co-defendants and so-called “jailhouse informants,” or merely relocation, they influence witnesses through unfair inducements. Paradoxically, these inducements are prohibited to the defense and categorically prohibited as bribery in all other legal contexts.Prosecutors and judges often point to existing safeguards in the legal system, including cross-examination and an illusory disclosure requirement, as sufficient to combat the risk of perjury, appealing to the difficulty of securing convictions in complex cases. However, as DNA testing continues to reveal wrongful convictions based on perjured testimony, such optimism must be viewed as misguided. Prosecutors and judges fail to recognize that the system rewards police and prosecutors who shirk their disclosure duties. These failures to disclose are nearly impossible for defendants and their attorneys to uncover once a defendant is convicted. Complicating matters exponentially, the racist and classist history of law enforcement in this country is largely responsible for the underlying reticence of many witnesses to testify in the absence of incentives. Communities of color and immigrant communities, current and historical subjects of abusive police and prosecutorial misconduct, do not trust police and prosecutors to protect their interests. So-called “white-collar” criminals intuit that the system was generally constructed to safeguard capitalist wealth-building—not undermine it. Thus, the State’s difficulty in prosecuting many accused individuals is a problem of its own making.In many areas, criminal law recognizes the extreme burden the State must carry to override the accused’s interest in freedom. In fact, the Due Process Clauses of the Fifth and Fourteenth Amendments were drafted largely to illuminate this heavy burden. For much of American history, the Supreme Court couched this burden in the language of “fundamental fairness.” Over time, however, the Court began balancing the interests of the State with those of criminal defendants as it moved away from using fundamental fairness as the primary tool for extending protections to the accused. This shift was incorrect from both a logical and historical perspective. Fundamental fairness concerns only the rights of the individual accused—not the interests of the State. Thus, this Comment argues that the Court must revive and correct its fundamental fairness jurisprudence, estopping the State from offering incentives to witnesses in criminal trials. This remedy remains the only one among many proposed to effectively combat the risk of perjury inherent to incentivized testimony while simultaneously restoring fairness concerns to their proper target: the accused. After all, the primary duty of the American prosecutor is to seek justice—not convictions.
PubDate: Wed, 07 Jun 2023 21:35:06 PDT
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- Innocence is Not Enough: Illinois Certificates of Innocence & the Case
of Wayne Washington-
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Authors: Erin M. Wright
Abstract: In 2008, the Illinois State Legislature found that “innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]” To correct this injustice, the General Assembly created a petition for a Certificate of Innocence (“COI”), which provides wrongfully convicted individuals the opportunity to obtain financial relief for time spent incarcerated. Petitioners must show that they “did not by [their] own conduct voluntarily cause or bring about [their] conviction.” Notably, the legislature did not supply a definition for “voluntary,” leaving courts free to impart their own. Despite the legislature’s recognition that “substantive and technical obstacles” prevent wrongly convicted individuals from relief, Illinois courts have imposed such obstacles through the term “voluntary.”In some instances, courts ignore this critical term by entirely omitting it from statutory analysis; in others, courts use “voluntary” to deny COIs. In the judiciary’s view, an individual “voluntarily cause[s] or bring[s] about” their conviction when they confess to a crime or accept a plea deal, regardless of the circumstances. This interpretation ignores the innocence of a person whose confession was coerced or accepted a plea deal under circumstances disguised as a rational choice. Although granting a COI is “generally within the sound discretion of a court,” the Illinois judiciary has improperly imposed a condition absent from the text that, carried to its logical conclusion, would deny COIs to innocent people.This Comment explores the purpose of Section 2-702, contemplates “voluntary” conduct, and illuminates the implications of judicial frustration. The case of Wayne Washington exemplifies the judiciary’s abuse of discretion and its imposition of substantive and technical obstacles that the Illinois legislature sought to overcome by enacting Section 2-702. Finally, this Comment argues that COIs are the only adequate remedy for wrongfully convicted individuals and proposes legislative and judicial solutions.
PubDate: Wed, 07 Jun 2023 21:35:06 PDT
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- The Problem of Habitual Offender Laws in States with Felony
Disenfranchisement-
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Authors: Daniel Loehr
Abstract: Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. At the same time, many people with felony convictions cannot vote or run for office due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political process problem. As John Hart Ely argued, laws that target a formally disenfranchised group are tainted and deserve heightened constitutional scrutiny. When reviewing habitual offender laws under the Eighth Amendment, however, courts have applied the opposite of heightened scrutiny—they have applied an extreme form of deference for decades.This phenomenon of deference despite disenfranchisement creates a cruel democratic purgatory. It is the institutional equivalent of disenfranchising people with pre-existing health conditions, passing a health insurance law that excludes them, and then declining to hear their constitutional challenges out of deference to the democratic process. Or disenfranchising women, criminalizing abortion, and shutting the courthouse door.This Article describes this dysfunctional dynamic and offers a solution: if a court is reviewing a habitual offender law from a state with felony disenfranchisement, it should apply heightened scrutiny, not deference.
PubDate: Wed, 07 Jun 2023 21:35:05 PDT
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- Toward a Socio-Legal Theory of Male Rape
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Authors: Orna Alyagon-Darr et al.
Abstract: In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes.The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.
PubDate: Wed, 07 Jun 2023 21:35:05 PDT
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- Felony Murder Liability for Homicides by Police: Too Unfair and Too Much
to Bear-
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Authors: Maria T. Kolar
Abstract: On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy’s mother and local activists, the district attorney also charged five officers with first-degree manslaughter for this same killing.This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony.This is the first Article to address felony murder liability for homicides by nonparticipants. This Article presents a fifty-state survey of American law that determines which states maintain a traditional approach to felony murder (not requiring any culpable mens rea regarding a killing arising from a covered felony), which states are “agency states” (that limit felony murder to killings by participants), which are “proximate cause states” (that allow felony murder convictions for killings by nonparticipants), and which proximate cause states would potentially allow felony murder liability for a criminal homicide by a police officer, bystander, or victim.This Article maintains that even states that have adopted a broad proximate cause approach to felony murder should prevent such liability for killings by nonparticipants that are chargeable homicides and proposes some statutory and doctrinal approaches for doing so in a principled way.
PubDate: Wed, 07 Jun 2023 21:35:03 PDT
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- Holding Government Officials Accountable by Applying the State-Created
Danger Doctrine to Cases of Suicide-
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Authors: Zoe Levine
Abstract: Section 1983 of the Civil Rights Act provides a means for plaintiffs whose civil rights have been violated by government officials to sue for monetary compensation. However, the doctrine of qualified immunity hampers a plaintiff’s chances of success by blocking cases from going to trial and preventing government entities from paying monetary judgments on “insubstantial cases.” State-created danger doctrine is a judicially created exception that can overcome qualified immunity when a government official has caused or contributed to a danger that resulted in harm to that individual. The purpose of this doctrine is to hold officials accountable who were more than negligent. Enforcing this accountability is especially important when those officials operate within the realm of the criminal legal system. Police officers and law enforcement officials are in a position to create more harm than other government officials as they have state- sanctioned authority and potential access to weapons. Moreover, creating accountability through the exception likely would incentivize the officers to act with more care in the future.This Comment examines the state-created danger doctrine applied to cases where a government official’s decisions have resulted in the suicide of an individual. In cases of suicide, this analysis reveals that plaintiffs have failed to succeed even when the actions of government officials have seemingly surpassed negligence. These cases often fail because courts interpret the decisions of government officials to be inactions rather than actions. Courts find that the threat of suicide has always existed, regardless of decisions by officials that might have exacerbated this risk. By not characterizing these decisions as actions, the courts allow qualified immunity to block liability. This article proposes an innovative solution: a test that reinterprets the language of DeShaney, the originator of the doctrine, to interpret “actions” to include instances where a government official closed off and later reopened the harm to that individual through their decisions.This Comment will then apply this test to the fact patterns of leading suicide-related cases and those involving law enforcement officials to show how it results in more successes for plaintiffs and more consistent results overall. The Comment concludes that enforcing accountability in this sphere will better protect the public from the officials, operating in the law enforcement or general governmental sphere, who have endangered them by behaving in a way that surpasses negligence.
PubDate: Mon, 03 Apr 2023 20:07:12 PDT
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- Judicial Resistance to New York's 2020 Criminal Legal Reforms
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Authors: Angelo Petrigh
Abstract: This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects.Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors.This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law.
PubDate: Mon, 03 Apr 2023 20:07:11 PDT
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- Criminalizing ESG: A Framework to Hold Corporations Accountable for
Incorrect ESG Disclosures-
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Authors: Sierra Anderson
Abstract: Investors are increasingly interested in corporate environmental, social, and governance (“ESG”) data, so the SEC has faced pressure to create a mandated ESG disclosure regime. The Commission has begun exploring ESG disclosures, including creating a dedicated task force and opening a public comment process. But, if the SEC wants to require corporations to provide investors with meaningful ESG data, it must be able to hold corporations civilly and criminally liable for providing false information—which hinges on ESG statements being material. This article analyzes what types of ESG data would likely be found material under current laws. After applying this information, this article concludes with various ways the SEC could utilize the materiality analysis to create a functional, standardized disclosure regime. This recommended framework would benefit investors by providing key ESG information while ensuring that the SEC and DOJ could attach liability to any incorrect and fraudulent data.
PubDate: Mon, 03 Apr 2023 20:07:11 PDT
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- Habit, Crime, and Culpability
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Authors: Eric A. Johnson
Abstract: Courts and scholars long have distinguished the wrongdoing component of criminal liability from the culpability component. In the old days, wrongdoing was thought to be crime’s physical, objective component— the “evil-doing hand.” Culpability, by contrast, was the mental, subjective component—the “evil-meaning mind.” Nowadays, most scholars agree with Holmes that even the wrongdoing component requires proof of the actor’s mental state. If the wrongdoing component requires proof of the actor’s mental state, though, what’s the point of the culpability requirement' For now, the dominant answer appears to be that the culpability requirement is a concession to human weakness.In this Article, I will develop a different view. I will argue that the culpability requirement is less a concession to human weakness than to the varieties of human rationality. Building on insights by philosopher Michael Bratman and others, I will argue that rationality can take at least two fundamentally different forms. The wrongdoing requirement is concerned only with conduct’s time-slice rationality—with the act’s downstream risks and utilities as measured from the moment of the act. Conduct that isn’t time- slice rational, however, still can embody a second kind of rationality, namely, temporally extended rationality. This second variety of rationality is present, for example, when an actor’s conduct is attributable to desirable habits of thinking, feeling, or behaving. The culpability requirement is best understood as addressed to this second kind of rationality. It absolves just those actors whose conduct, though wrongful, nevertheless is a product of desirable habits.
PubDate: Mon, 03 Apr 2023 20:07:10 PDT
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- Public Records Aren't Public: Systemic Barriers to Measuring Court
Functioning & Equity-
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Authors: Kat Albrecht et al.
Abstract: In a new era of computational legal scholarship, computational tools exist with the capacity to quickly and efficiently reveal hidden inequalities in the criminal legal system. Technically, laws exist that legally entitle the public to the requisite court records. However, the opaque bureaucracy of courts prevents us from connecting the public to documents they have a right to access. We exemplify this legal ethical problem by investigating areas of law where codified protections against inequalities exist and where computational tools could help us understand if those protections are being enforced. In general, the computational requirements of such projects needn’t be complex, making them even more attractive as solutions for auditing legal system processes. Using the backdrop of a national audit of public records policies to retrieve criminal jury trial transcripts, we establish the impossibility of securing the public records needed to quantify the illegal use of racially motivated peremptory strikes. We argue that the lack of opacity or availability of these policies serve as a bottleneck to the relatively simple computational process of quantifying previously unknown language and events in criminal jury trials. This Article considers the ethical implications of the lack of access to records that are legally public and considers how this lack of access to records becomes an access to justice problem.
PubDate: Mon, 03 Apr 2023 20:07:09 PDT
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- Reframing Hate
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Authors: Lu-In Wang
Abstract: The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation' Does that enhanced punishment infringe on the perpetrator’s rights to freedom of belief and expression' How can we know or prove a perpetrator’s motivation' And, most practical of all: Do hate crime laws work'This Essay proposes that we reframe our understanding of what we label as hate crimes. It argues that those crimes are not necessarily the acts of hate-filled extremists motivated by deeply held, fringe beliefs, but instead often reflect the broader, even mainstream, social environment that has marked some social groups as the expected or even acceptable targets for crime and violence. In turn, hate crimes themselves influence the social environment by reinforcing recognizable patterns of discrimination. The Essay maintains that we should broaden our understanding of the motivations for and effects of hate crimes and draws connections between hate crimes and seemingly disparate phenomena that have recently captured the nation’s attention.
PubDate: Mon, 03 Apr 2023 15:58:38 PDT
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- U.S. Hate Crime Trends: What Disaggregation of Three Decades of Data
Reveals About a Changing Threat and an Invisible Record-
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Authors: Brian Levin et al.
Abstract: When prejudice-related data are combined and analyzed over time, critical information is uncovered about overall trends, related intermittent spikes, and less common sharp inflectional shifts in aggression. These shifts impact social cohesion and grievously harm specific sub-groups when aggression escalates and is redirected or mainstreamed. These data, so critical to public policy formation, show that we are in such a historic inflection period now. Moreover, analysis of the latest, though partial Federal Bureau of Investigation hate crime data release, when overlaid with available data from excluded large jurisdictions, reveals hate crimes hit a record high in 2021 in the United States that previously went unreported. This Essay analyzes the most recent national data as well as various numerical and policy milestones that accompanied the historic, yet incomplete, implementation of hate crime data collection and related statutes over recent decades. This analysis of emerging trends in the United States is undertaken in the context of bigoted aggression broken down over time.
PubDate: Mon, 03 Apr 2023 15:58:37 PDT
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- The Conundrums of Hate Crime Prevention
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Authors: Shirin Sinnar
Abstract: The recent surge in hate crimes alongside persistent concerns over policing and prisons has catalyzed new interest in hate crime prevention outside the criminal legal system. While policymakers, civil rights groups, and people in targeted communities internally disagree on the value of hate crime laws and law enforcement responses to hate crimes, they often converge in advocating measures that could prevent hate crimes from occurring in the first place. Those measures potentially include educational initiatives, conflict resolution programs, political reforms, social services, or other proactive efforts aimed at the root causes of hate crimes.Focusing on the public conversation around anti-Asian hate crimes, this Essay argues that very different conceptions of the hate crime problem lie beneath the support for hate crime prevention. Broadly speaking, proposals for hate crime prevention fall into three categories: 1) prejudice reduction measures; 2) political and structural reforms; and 3) socioeconomic investments in communities. Prejudice reduction measures, such as educational programs to reduce stereotyping, stem from a view of hate crimes as an extreme manifestation of bias. Advocacy for political and structural reforms corresponds to a conception of hate crimes as the product of intergroup struggles over power and resources often influenced by the state. Calls for socioeconomic investments link hate crimes to the conditions that produce interpersonal harm more generally, such as economic distress or public health failures.This Essay maps out these different conceptions of hate crime prevention and relates them to theoretical perspectives and empirical evidence from social psychology, sociology, criminology, and other fields. Drawing on this review, it argues that the project of hate crime prevention faces several empirical and normative conundrums. In addition to disagreements over conceptualizing hate crimes, these puzzles include the relationship between attitudes and behavior, the potential tension between hate crime prevention and other socially desirable policy goals, and the difficulty of maintaining support for long-term, structural change.
PubDate: Mon, 03 Apr 2023 15:58:37 PDT
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- A Trauma-Centered Approach to Addressing Hate Crimes
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Authors: Avlana Eisenberg
Abstract: A dominant justification for hate crime laws is that they serve a crucial expressive function—sending messages of valuation to victims, and of denunciation to defendants. Yet, as this Essay will demonstrate, the focus on criminalizing hate—through the enactment of either sentencing enhancements or stand-alone hate crime statutes—has resulted in a thin conception of messaging that fails to recognize the limitations of the criminal law in addressing psychic harm.This Essay argues that a more robust approach to addressing hate crimes must consider alternatives—beyond incarceration—that would center the trauma associated with hate crimes. This includes restorative justice models that might benefit both victims and defendants. Ultimately, the Essay calls into question conventional assumptions about the expressive function of hate crime laws while demonstrating the importance of a broad, holistic, and interdisciplinary lens, as well as interventions beyond the parameters of criminal law.
PubDate: Mon, 03 Apr 2023 15:58:36 PDT
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- Pick the Lowest Hanging Fruit: Hate Crime Law and the Acknowledgment of
Racial Violence-
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Authors: Jeannine Bell
Abstract: The U.S. has had remedies aimed at racial violence since the Ku Klux Klan Act was passed in the 1870s. Hate crime law, which is more than thirty years old, is the most recent incarnation. The passage of hate crime law, first at the federal level and later by the states, has done very little to slow the rising tide of bigotry. After a brief discussion of state and federal hate crime law, this Article will critically examine the country’s approach to hate crime. The article will then discuss one of the most prevalent forms of hate crime—bias-motivated violence that targets individuals in their homes. The article will conclude with a discussion of the approach taken by the Justice Department in the Ahmad Arbery case as a potentially positive solution for the handling of hate crime cases.
PubDate: Mon, 03 Apr 2023 15:58:35 PDT
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