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Showing papers in "Journal of Criminal Law & Criminology in 2010"


Journal Article
TL;DR: The authors discusses the theoretical connections that are presumed by the deterrence process and briefly reviews some important empirical studies pertaining to each of those presumed causal connections, concluding that there is a marginal deterrent effect for legal sanctions, but this conclusion must be swallowed with a hefty dose of caution and skepticism.
Abstract: This Article discusses the deterrence of crime through sanctions. It begins with a brief intellectual history of deterrence theory in the work of Cesare Beccaria and Jeremy Bentham, two Enlightenment philosophers who created the conceptual foundation for later deterrence and rational choice theory. Although a prominent intellectual current by the end of the 1700s, interest in deterrence and rational choice based theories of criminal offending was later eclipsed by more biologically and psychologically based explanations. Interest in deterrence theory and the deterrent effect of legal sanctions was not rekindled until the mid-1960s. This Article discusses the particular and important role of the Journal of Criminal Law and Criminology in publishing the works of both those who were highly critical of deterrence theory and those who wished to keep it alive, though vividly aware of the lack of any empirical support for it. This Article discusses the theoretical connections that are presumed by the deterrence process and briefly reviews some important empirical studies pertaining to each of those presumed causal connections. The empirical evidence leads to the conclusion that there is a marginal deterrent effect for legal sanctions, but this conclusion must be swallowed with a hefty dose of caution and skepticism; it is very difficult to state with any precision how strong a deterrent effect the criminal justice system provides. At the very least, there is a great asymmetry between what is expected of the legal system through deterrence and what the system delivers. There is greater confidence that non-legal factors are more effective in securing compliance than legal threats. It is argued that the empirical evidence does support the belief that criminal offenders are rational actors, in that they are responsive to the incentives and disincentives associated with their actions, but that the criminal justice system, because of its delayed imposition of punishment, is not well constructed to exploit this rationality.

366 citations


Journal Article
TL;DR: It is argued that even in the studies that report statistically significant racial differences in criminal justice outcomes, the effect sizes are too small to really matter.
Abstract: Race differences in criminal involvement and racial patterns in the criminal justice system have been important topics since the beginning of American criminology. The question of whether there are meaningful racial disparities in the justice system has been important since the 1960s. In recent decades, a considerable literature focused on racial profiling by police and racial differences in imprisonment, sentencing, and other areas of criminal and juvenile justice processing has grown. There are both studies that report no significant racial differences in criminal justice processing and studies that report substantial differences. Taken together, how meaningful are observed differences? Wilbanks concludes that they are not. He maintains that even in the studies that report statistically significant racial differences in criminal justice outcomes, the effect sizes are too small to really matter. In other words, Wilbanks argues that these

45 citations


Journal Article
TL;DR: In this article, the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work.
Abstract: In this Article, the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This Article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful convictions. They also argue that the research on wrongful convictions has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policymakers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.

44 citations


Journal Article
TL;DR: In this paper, Perrow pointed out that the operator is confronted by unexpected and usually mysterious interactions among failures, and that he should have zigged instead of zagged. But if, as we shall see time and again, the operator was confronted by unpredictable interactions among failure, it is possible only after the fact to know what was going on and what should have been done.
Abstract: [Virtually every system we will examine places "operator error" high on its list of causal factors?generally about 60 to 80 percent of accidents are attributed to this factor. But if, as we shall see time and again, the operator is confronted by unexpected and usually mysterious interactions among failures, saying that he should have zigged instead of zagged is possible only after the fact. Before the accident no one could know what was going on and what should have been done. 2 ?Charles Perrow

40 citations


Journal Article
TL;DR: The authors examines the treatment of girls' sexuality in the justice system, from the early reformatories to the contemporary era, and examines how juvenile courts and girls' correctional institutions have traditionally constructed and controlled girls' sexual choices, sexual abuse histories, identities, and orientation.
Abstract: Throughout transformations and legal changes in juvenile justice, the character and constitution of the female juvenile offender population has changed very little, with girls infrequently charged with serious law violations and commonly judged in terms of their moral welfare and sexual behavior. This Article examines the treatment of girls' sexuality in the justice system, from the early reformatories to the contemporary era. It looks at how juvenile courts and girls' correctional institutions have traditionally constructed and controlled girls' sexual choices, sexual abuse histories, identities, and orientation. Specifically, it shows how, over the past one hundred years, legal actors and correctional practitioners have consistently focused on girls' sexuality and identified similar causes for girls' sexual deviance (disrupted families, economic deprivation, educational and vocational deficits, and unhealthy relationships with older men), but have framed such causes, as well as their responses, differently.

38 citations


Journal Article
TL;DR: In this article, the authors examine the history that led Cook County to conduct bail hearings using the closed circuit television procedure (CCTP) and the actual impact that the change from live hearings to the CCTP produced for bail outcomes, tracing the expansion of bail from a mechanism designed to ensure that the defendant would appear for his trial.
Abstract: Over the course of the past century, bail decisions have been affected by two important developments that threaten the due process rights of defendants. First, the American criminal justice system expanded the reasons used to deny bail or to set high bond amounts. Second, and perhaps not surprisingly in view of the increasing pressure placed on courts by a growing docket of cases, American courts began to experiment with technology as a way to reduce costs, including those created by the growing volume of cases. The convergence of these two trends culminated in a perfect storm in 1999 when Cook County, Illinois instituted the practice of holding bail hearings for most felony cases using a closed circuit television procedure (CCTP) that allowed the defendant to remain at a remote location during the bail hearing. The assumption that justified the implementation of the video system, as with many criminal justice system reforms, was that it would reduce costs without disadvantaging defendants. We examine here the history that led Cook County to conduct bail hearings using the CCTP and the actual impact that the change from live hearings to the CCTP produced for bail outcomes. We begin in Part II by tracing the expansion of bail from a mechanism designed to ensure that the defendant would appear for his trial

33 citations


Journal Article
TL;DR: The prison has been far more important to criminal justice practice than to academic theory in the century examined by this Symposium, while some aspects of prisons have commanded attention in the literature of criminology.
Abstract: The prison has been far more important to criminal justice practice than to academic theory in the century examined by this Symposium Imprisonment is the dominant severe criminal sanction worldwide and there is no evidence that its hegemony at the deep end of crime control will change But the study of imprisonment has not been a major feature of criminal law theory at any time, while some aspects of prisons have commanded attention in the literature of criminology So imprisonment has played a dominant role in American criminal justice but a minor role in the discourse about criminal law The Harvard Law Review, for example, listed twenty-seven articles with "prison" or "imprisonment" in the title in one hundred years of publication beginning in 1910 The interdisciplinary character of the Journal of Criminal Law and Criminology and its crime focus made it into the leading forum in law related scholarship covering issues of prison operation and function No fewer than 155 main articles were published with "prisons" or "imprisonment" in their titles in a century of publications, by far the largest concentration one would find in any scholarly journal closely linked to legal

33 citations


Journal Article
TL;DR: This article examined nineteen articles written about women offenders in the first one hundred years of The Journal of Criminal Law and Criminology (Journal), and summarized and critique the articles and placed their findings in the context of current-day scholarship on feminist criminology.
Abstract: Two of the most significant contributions of feminist criminology since the 1970s are the documentation of (1) the significant amount of violence against women and girls perpetrated by men and boys; and (2) how girls' and women's victimizations and trauma, often at the hands of abusive men, are risk factors for their subsequent offending or labeling as "offenders." On this one-hundredth anniversary of The Journal of Criminal Law and Criminology (Journal), I examined the nineteen articles written about women offenders in the first one hundred years, and in this Article, I summarize and critique the articles and place their findings in the context of current-day scholarship on feminist criminology. Overwhelmingly, these nineteen Journal "historical articles" were written primarily by women in the first three decades of the Journal (1910-1939), and they describe the characteristics of offending women and (speculations about) their offending, the reformatories and prisons in which these women were housed, and the laws regarding and leading to the implementation of women's reformatories. Unlike much of today's work on incarcerated women, these articles rarely consider race or the prisoners' lifetime traumas. When race is considered, it is frequently done so in a racist manner. The women's victimizations, if acknowledged, are typically indicated in a veiled manner. Still, these articles describe women who are highly marginalized by class and the conditions associated with economic marginalization: extremely poor health and very limited education and employment opportunities. At the same time, their survival behaviors, including prostitution, are criminalized alongside other offenses for which men are never incarcerated (such as having sex outside of marriage).

30 citations


Journal Article
TL;DR: In this article, the authors argue that victim autonomy is not the chief goal of the criminal justice system and that a high number of domestic violence victims currently do not want to engage with the system.
Abstract: Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as undermining victim autonomy This criticism is puzzling given the fact that these policies were drafted in response to the activism of feminists involved in the women’s liberation movement and that autonomy, or the agency of women, was a key goal of this movement This apparent paradox can be explained, however, by the fact that activists involved in the early battered women’s movement and actors in the current criminal justice regime speak in two different “languages” Thus, complete victim autonomy is a concept that got lost in the translation of some of the goals of the early battered women’s movement into criminal justice policy While this Article acknowledges that victim autonomy is not the chief goal of the criminal justice system, it still urges proponents of current criminal justice policies to take seriously the fact that a high number of victims currently do not want to engage with the criminal justice system This number is an important metric in analyzing the effectiveness of domestic violence policies First, it underscores the fact that improvements need to be made in victims’ interactions with the criminal justice system and in the criminal justice system’s response to those victims who do ask for help Second, it highlights the fact that the criminal justice system is a limited tool in addressing what is a social, political, and economic problem For this reason, a criminal justice solution should be part of broader domestic violence policies that address the complexity of this issue The economic disparities that women experience as a class and the intersectionality of race, class, sexuality, and gender are important aspects of a broader approach to the domestic violence problem

26 citations


Journal Article
TL;DR: The United States is in the midst of a prisoner reentry crisis as discussed by the authors, which will become more heightened in the immediate future, as the number of individuals completing their prison sentences will continue to climb and as states that can no longer afford to incarcerate at massive levels and at staggering expense, will be forced to release individuals early from their sentences or create other strategies to reduce criminal justice spending.
Abstract: The United States is in the midst of a prisoner reentry crisis. In 1980, fewer than 170,000 people were released from federal and state prisons in the United States. By 2008, the number of individuals released skyrocketed to 735,454. As a result, more individuals, families, and communities are impacted by reentry than at any point in history. This crisis will become more heightened in the immediate future, as the number of individuals completing their prison sentences will continue to climb and as states that can no longer afford to incarcerate at massive levels—and at staggering expense—will be forced to release individuals early from their sentences or create other strategies to reduce criminal justice spending.

20 citations


Journal Article
TL;DR: In this paper, the government's intentional suppression of relevant evidence gives rise to an inference that the litigant's case is weak and that the judge knew his case would not prevail if the evidence was presented at trial.
Abstract: The government’s duty to disclose favorable evidence to the defense under Brady v. Maryland has become one of the most unenforced constitutional mandates in criminal law. The intentional or bad faith withholding of Brady evidence is by far the most egregious type of Brady violation and has led to wrongful convictions, near executions, and other miscarriages of justice. This Article suggests that two ramifications should flow from intentional Brady violations. First, courts should have the power to inform the jury of the government’s Brady misconduct by imposing a specially crafted punitive jury instruction. Unlike the ineffective sanctioning scheme currently used to redress Brady violations, the proposed “Brady Instruction” could serve as a powerful deterrent against this virulent form of prosecutorial misconduct. Second, under wellestablished evidentiary principles, a litigant’s intentional suppression of relevant evidence gives rise to an inference that the litigant’s case is weak and that the litigant knew his case would not prevail if the evidence was presented at trial. The government’s intentional Brady misconduct falls within the scope of the “consciousness of a weak case” inference. Given that the government always has the burden of proof in a criminal case,


Journal Article
TL;DR: In this article, the author analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, and assesses their applicability to the United States, and advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for voluntary manslaughter mitigation.
Abstract: The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for voluntary manslaughter mitigation. Two insights guide this Article’s critique of partial excuses for murder. First, the revised legal history of intimate-partner homicide presented here demonstrates that the modern version of the provocation defense protects a broader class of angry, jealous, predominantly male defendants than the traditional doctrine of the nineteenth century did. Heat-of-passion claims have become the new “abuse excuse” for men. Second, battered woman syndrome evidence, which is now commonly admitted when abused women stand trial for murder, resonates uncomfortably with insanity claims. Reliance on such evidence ignores the fact that “rational moral actor” theories were also raised successfully in the past to defend domestic violence victims who killed their partners. Based on these insights, I argue that the most desirable aspects of the Australian reforms emphasize moral judgment about the defendant’s reasons for killing and disfavor concessions to irrationality. Inspired by Australian efforts, legislatures in the U.S. should implement comprehensive reform of homicide law and sentencing. Yet, even if American states retain rigid sentencing structures, this Article advocates the repeal of the extreme mental or emotional disturbance defense and a reconceptualization of the provocation doctrine, guided by substantive equality principles, to require that the defendant’s valuation was justified. Provocation mitigation should be curtailed by categorical exclusions for killings arising from beliefs and passions, including lethal rage at infidelity or the termination of an intimate relationship, that do not comport with evolving social norms. Furthermore, although many battered women charged with murdering a violent spouse can successfully claim provocation under the excuse-based modern doctrine, reformist legislatures ought to provide a new intermediate outcome that fits better with the circumstances of such women’s cases.

Journal Article
TL;DR: For most of our nation's history, the pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive's policy goals as discussed by the authors.
Abstract: For most of our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction. It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse. To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.” Who hijacked the president’s pardon power? Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship. It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration. Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.

Journal Article
TL;DR: In 2008, Angie Zapata, then 18, met a thirty-two-year old man on a social networking site called Moco Space and they began to chat as mentioned in this paper.
Abstract: Sometime in 2008, Angie Zapata, then eighteen, met a thirty-two-year old man on a social networking site called Moco Space,2 and they began to chat.3 Later that year, in mid-July, she met that man, Allen Ray Andrade, in person for a date.4 A few days later, Angie's sister, Monica Zapata, found Angie's body in Angie's apartment, stiff and "covered with a bloodstained blanket."5 She had been beaten to death with fists and a fire extinguisher.6

Journal Article
TL;DR: In this article, the authors argue that when the police take part in procedurally flawed media events, they may do more harm than good, sincere efforts to inform the public about law enforcement actions may ultimately erode the perception of police legitimacy and result in increased criminality and that it is incumbent on law enforcement to wrest control of its media interactions and insist that proper police procedures be observed on camera and off.
Abstract: Programs such as NBC's Dateline: To Catch a Predator illustrate the possible pitfalls of law enforcement interactions with media. To Catch a Predator is rife with procedural deficiencies and often appears to place the goal of increased ratings ahead of appropriate law enforcement procedures. Recent research in the field of social psychology has revealed that the perception of the law and law enforcement as legitimate can have an important effect on public compliance with the law. When the police take part in procedurally flawed media events, they may do more harm than good?sincere efforts to inform the public about law enforcement actions may ultimately erode the perception of police legitimacy and result in increased criminality. As such, it is incumbent on law enforcement to wrest control of its media interactions and insist that proper police procedures be observed on camera and off

Journal Article
TL;DR: The majority of states follow the Supreme Court's framework for determining whether show-up evidence is admissible at trial, but this majority approach employs a malleable and outdated facts-and-circumstances analysis.
Abstract: When a crime has been committed, law enforcement will often ask the crime victim to identify the perpetrator in a lineup, photo array, or show up A show-up is an identification procedure in which, unlike in a lineup or photo array, the suspect is presented singly to the crime victim Based on a positive identification, the prosecutor will then prosecute, and often convict, the defendant Research has shown, however, that eyewitness identification evidence is incredibly unreliable and is by far the leading cause of wrongful convictions Further, show-ups are the least reliable of all the identification procedures, and their use further increases the incidence of wrongful convictions Despite this serious problem, the majority of states follow the Supreme Court's framework for determining whether show-up evidence is admissible at trial This majority approach, or majority rule, employs a malleable and outdated facts-and-circumstances analysis As a result, unreliable show-up evidence is routinely used against defendants in criminal trials

Journal Article
TL;DR: This Article considers the evolution of thinking about criminal justice and racial justice over the last one hundred years in the Journal of Criminal Law and Criminology.
Abstract: This Article considers the evolution of thinking about criminal justice and racial justice over the last one hundred years. If I were writing about race and crime in 1910, the year the Journal of Criminal Law and Criminology was founded,1 the problem that I would have focused on would be lynchings, which were sometimes an extra-legal response to African-American criminal suspects (and sometimes just random mob violence). The National Association for the Advancement of Colored People (NAACP) was created the year before the Journal.1 The NAACP began as a response to the domestic terrorism of rampant lynchings, which were mainly in the South but all over the country.3 Most of the victims were African-American but there were Latino, Jewish, and immigrant victims as well.4 Thus the main race and crime problem, as

Journal Article
TL;DR: One hundred and fifty delegates from throughout the United States met at the Northwestern University School of Law to attend the First National Conference on Criminal Law and Criminology (National Conference) as mentioned in this paper.
Abstract: On June 7th and 8th, 1909, one hundred and fifty delegates from throughout the United States met at the Northwestern University School of Law to attend the First National Conference on Criminal Law and Criminology (National Conference) Mirroring the nascent field of criminology, invitees ran the gamut of professional affiliations There were alienists, sociologists, prison wardens, prison doctors, the superintendent of a women's reformatory, a statistician, an Episcopal bishop, and lots of lawyers The conference's organizing committee, led by John H Wigmore, Dean of the Northwestern University School of Law, included Roscoe Pound, Municipal Court Judge Harry Olson,1 and Clarence Darrow The National Conference was held to mark the fiftieth anniversary of the founding of the Northwestern University School of Law Its purpose was to promote cooperation and the exchange of ideas between disciplines concerned with crime and criminals Roscoe Pound, looking back on the event in 1941, described the National Conference as its organizer John H Wigmore's "second great stroke" in modernizing criminal law and procedure, which was in "a most unhappy condition" at the time2 The National Conference voted into existence the American Institute of Criminal Law and Criminology (the Institute) The purpose of the Institute was to foster cooperation between lawyers and scientists to

Journal Article
TL;DR: A criminal defendant's constitutional right to a jury trial is premised in part on the view that a jury's verdict of guilt or innocence may differ from that of a judge deciding the same case as mentioned in this paper.
Abstract: A criminal defendant's constitutional right to a jury trial is premised in part on the view that a jury's verdict of guilt or innocence may differ from that of a judge deciding the same case. Empirical research has confirmed that judges and juries do sometimes disagree about verdicts and that the direction of these disagreements is overwhelmingly in the direction of jury leniency. In their seminal study, The American Jury, Harry Kalven and Hans Zeisel suggested that when cases are close on the evidence, juries are "liberated" from the dictates of the law, and can?and do?give expression to extralegal values in arriving at verdicts. This explanation feeds the commonly held view that judges decide according to legal rules, but juries make decisions that reflect the values and sentiment of the community, even when those decisions are in opposition to the law. This perspective has been supported by research primarily based on the perceptions of judges about how juries reach their verdicts. Missing from our understanding of why judges and juries disagree is information from jurors about the factors that motivate their

Journal Article
TL;DR: The history of sentencing in the United States can be recounted from a number of perspectives; common law rules crafted by judges, statutes drafted by legislatures, regulations promulgated by agencies, or standards articulated by academic experts, like penologists, sociologists, political scientists?the kind of scholars who write in this estimable Journal.
Abstract: For the centennial of this renowned Journal, I have been asked to tell the history of American sentencing?concisely, to be sure. The history of sentencing in the United States can be recounted from a number of perspectives. First, there is an institutional story?the story of the division of labor between all of the sentencing players. Sentencing is, after all, a system; sentencing institutions work in relation to, and not independent of, one another. Players in the sentencing system include the traditional ones: judges, lawyers?both prosecutors and defense?as well as the Congress, the public, sometimes the jury, and most recently, administrative agencies. Second, and as a corollary of that division of labor, sentencing can be examined through the different sources of its rules and standards, which can be common law rules crafted by judges, statutes drafted by legislatures, regulations promulgated by agencies, or standards articulated by academic experts, like penologists, sociologists, political scientists?the kind of scholars who write in this estimable Journal.

Journal Article
TL;DR: In the modern criminal justice system, adherence to expedience and pragmatism have contributed to the prevalence of two practices that have questionable constititional bases: plea bargains and postconviction civil penalties.
Abstract: In the modern criminal justice system, adherence to expedience and pragmatism have contributed to the prevalence of two practices that have questionable constititional bases: plea bargains and postconviction civil penalties. Each practice has been challenged in the courts individually and has survived judicial scrutiny. And as these two practices have become more commonplace, their continued intersection and interaction has become increasingly inevitable; however, even a superficial analysis of this combination of plea bargaining and postconviction civil penalties demonstrates that the constitutionality of the two practices can no longer be justified by an uneasy compromise with practicality.

Journal Article
TL;DR: The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions as mentioned in this paper, and this past crime evidence is admitted solely to show that the defendant may lack credibility.
Abstract: The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions. This past crime evidence is admitted solely to show that the defendant may lack credibility. It is not admitted to show that the defendant has a tendency to commit crimes in general or that he or she is a bad, dangerous person. Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. For this reason, judges are required to compare the prejudicial effect of past crimes evidence to its probative value before it is admitted. If the evidence is even slightly more prejudicial than probative of credibility, it is to be excluded. Sex offense convictions are extraordinarily prejudicial?overwhelming evidence shows that sex offenders are the most feared and despised group in this country?and these convictions are not particularly probative of credibility. Yet judges rarely acknowledge this when comparing the probative value of past sex crime convictions to their prejudicial effect on jurors. This failure undermines evidentiary principles that are fundamental to our system of criminal justice. A defendant who previously was convicted of a sex offense is left with three bad choices: he or she can accept a plea bargain regardless of actual guilt; go to trial but decline to testify; or testify, but lose the jury 's goodwill when the sex crime conviction is presented. An acquittal based on valid reasonable doubt becomes much less likely.


Journal Article
TL;DR: In this article, the authors explore the split between the Fifth and Eleventh Circuits on the issue of sexual privacy and statutes that ban the sale and distribution of sexual devices, and argue that the statutes, although perhaps silly or repugnant, are not unconstitutional as a matter of privacy, substantive due process liberty, equal protection, nor First Amendment sexual expression.
Abstract: This Comment explores the split between the Fifth and Eleventh Circuits on the issue of sexual privacy and statutes that ban the sale and distribution of sexual devices. Through a discussion centered around Lawrence v. Texas, the Comment argues that the statutes, although perhaps silly or repugnant, are not unconstitutional as a matter of privacy, substantive due process liberty, equal protection, nor First Amendment sexual expression. In fact, a finding of unconstitutionality could potentially do more harm than good to the greater goals of understanding female sexuality and providing sexual realization and autonomy. Those goals will be best served, as they have been thus far, via legislative means and further scientific research into the role and nature of sex and orgasm in modern relationships.

Journal Article
TL;DR: A legal-realist account of the century-long life span of modern Fourth Amendment doctrine can be found in this article, where the authors analyze the history of modern search and seizure and conclude that "little is left, it seems doubtful the right can be revived".
Abstract: This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine. The article then analyzes the century of modern Fourth Amendment doctrine in terms of five distinct periods. In the initial period, discussed in Part III, the justices pursued a goal similar to that evident earlier in the remarkably activist 1886 ruling in Boyd by reinvigorating the Fourth Amendment as a protection of papers, especially business records. In the seminal decision in Weeks, the justices innovated by reading the common-law warrant requirement for house searches into the Fourth Amendment itself, by applying that constitutional standard to the conduct of officers as well as to legislation, and by announcing the exclusionary rule as the consequence of an unconstitutional search and seizure. Later cases then extended that analysis to seizures of business records from offices. During the period of Prohibition, discussed in Part IV, the justices relaxed the Weeks warrant standard by inventing the concept of "Fourth Amendment reasonableness" in 1925 in Carroll to allow warrantless searches of autos for liquor in circumstances where searches incident to lawful arrests could not be justified. (Academics then prochronistically imposed that novel formulation on the past to invent the conventional but fictional account of Fourth Amendment history.) During the next period, discussed in Part V, the Roosevelt and Truman appointees then split as to whether the Weeks warrant conception or the Carroll reasonableness formulation should predominate. Part V discusses the period of the Warren Court, which definitely revolutionized search and seizure insofar as it incorporated Fourth Amendment law into the Fourteenth Amendment in Mapp and thus made it applicable to state criminal justice proceedings. However, the content of the justices’ rulings during this period was actually mixed. Available statistics indicate that government and defendant victories were essentially even during all but the decisions announced in 1968 and 1969 when a strong liberal majority emerged after Justice Marshall replaced Justice Clark. However, the extension of constitutional protections to state criminal defendants fundamentally altered the politics of criminal justice. Part VI then discusses the dismantling of search and seizure protections that began with Richard Nixon’s appointment of four justices known to be opposed to the Warren Court’s rulings. Statistics demonstrate that there was a marked change as government petitions soon became the predominate source of the search and arrest cases accepted for review. Additionally, except for a brief hiatus in the late 1970s that ended when Justice O’Connor replaced Justice Stewart, the conservative majority ruled predominately in favor of government parties during this final four-decade period as they undertook a multi-prong campaign to restrict virtually all aspects of search and seizure protections. After nearly abolishing the exclusionary rule in 1976, the Burger Court majority substantially curtailed the rule’s operation and also raised the threshold for standing. They also eased the standards for consent, restricted the scope of Fourth Amendment protections, eviscerated the probable cause standard in 1983 in Gates, and effectively ended enforcement of warrant standards in 1984 in Leon. More recently, the Rehnquist and Roberts Courts also effectively created discretionary police arrest and search authority in Atwater and Moore, and further curtailed exclusion while rejecting other potential modes for enforcing search protections. The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.

Journal Article
TL;DR: In this article, the authors argue that debates about capital punishment have been as much discontinuous as continuous over the past century, and that some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades.
Abstract: This essay challenges the easy (because partially true) assumption that there is nothing new under the sun in death penalty discourse. Rather, debates about capital punishment have been as much discontinuous as continuous over the past century. Some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades, despite the fact that they cared deeply about the issue of capital punishment in their own times. This essay describes two “lost” arguments from the past in favor of retention of capital punishment: the contention that capital punishment was a necessary antidote to extrajudicial lynchings and the defense of capital punishment as part of a larger program of eugenics endorsed by many progressive leaders of the late nineteenth and early twentieth centuries. The essay also explores two “new” abolitionist arguments from the present: the fiscal argument about the greater cost of capital punishment even in comparison to life imprisonment and the concerns raised about the suffering of those awaiting execution for lengthy periods (the so-called “Death Row Phenomenon”). Death penalty discourse has not been as static as is often assumed, and the debates of each era provide a window onto both the nature of the actual practice of the death penalty in different times and the broader social contexts in which that practice has operated.


Journal Article
TL;DR: The most damaging aspect of this trend is the exponentially increasing number of offense grading irrationalities found in most modern American codes as mentioned in this paper, and the practical and prudential importance of getting the grade of each offense or suboffense right.
Abstract: The Model Penal Code made great advances in clarity and legality, moving most of the states from a mix of common law and ad hoc statutes to the modern American form of a comprehensive, succinct code that has served as a model around the world. Yet the decades since the wave of Model Code-based codifications have seen a steady degradation of American codes brought on by a relentless and accelerating rate of criminal law amendments that ignore the style, format, and content of the existing codes. The most damaging aspect of this trend is the exponentially increasing number of offense grading irrationalities found in most modern American codes. This Article documents the practical and prudential importance of getting offense grading right—that is, having the grade of each offense or suboffense reflect its relative seriousness in relation to all other offenses— and then illustrates just how wrong things have gone, using a case study of offense grading in Pennsylvania, one of the better modern American codes. The critique of Pennsylvania does not rely upon the value judgments of the authors, but rather upon an empirical study of the judgments of Pennsylvania residents regarding the relative seriousness of more than a

Journal Article
TL;DR: In 2008, the United States Court of Appeals for the D.C Circuit held that the military style checkpoints set up to combat the city's gun violence problem were unconstitutional as mentioned in this paper, finding that the administrators had ignored Supreme Court guidance that has limited when, where, and how police checkpoints may be used in a manner consistent with the Constitution.
Abstract: During the summer of2008, crime in the Trinidad neighborhood of the District of Columbia was at an all time high and, in the eyes of top law enforcement brass, was only getting worse. In response to the rising crime rate, city leadership authorized a wide variety of law enforcement sweeps in the area, all of which proved ineffective. Reluctantly, the decision was made to set up police checkpoints around the neighborhood. The constitutionality of the police checkpoints was challenged in federal court that summer. Despite a favorable ruling in district court, the United States Court of Appeals for the D.C Circuit held that the military style checkpoints set up to combat the city's gun violence problem were unconstitutional. The appellate court found that the city's administrators had ignored Supreme Court guidance that has limited when, where, and how police checkpoints may be used in a manner consistent with the Constitution.