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Showing papers in "Journal of Criminal Law & Criminology in 2014"


Journal Article
TL;DR: This paper summarized the state of the art in a field that has advanced enormously in the past ten years: parental incarceration, and summarized five key lessons from this research, and then consider new directions for the next generation of research and policy.
Abstract: As the introduction to a series of articles, this Article summarizes the state of the art in a field that has advanced enormously in the past ten years: parental incarceration. On the heels of a summer 2013 workshop held in the White House Executive Office Building, entitled “Parental Incarceration in the United States: Bringing Together Research and Policy to Reduce Collateral Costs to Children,” we here summarize five key lessons from this research, and then consider new directions for the next generation of research and policy. In this way, this Article lays the foundation for a series of important forthcoming articles in the Journal of Criminal Law and Criminology.

34 citations




Journal Article
TL;DR: It is suggested that current incarceration has hedonic consequences, leading to statistically significant reductions in happiness across a range of statistical models.
Abstract: In recent years, legal scholars have become acutely concerned with the hedonic consequences of incarceration. Despite this interest, no research has simultaneously tested (1) whether current incarceration and recent incarceration lead to declines in happiness, and (2) whether the direct effects of imprisonment (what Gresham Sykes referred to as the “pains of imprisonment”) or the indirect effects of imprisonment (what scholars have come to call the “collateral consequences” of imprisonment) explain these effects, although there are compelling reasons to expect both. In this Article, we consider research on the causes of happiness and the consequences of incarceration to generate three hypotheses: the pains of imprisonment hypothesis, the incomplete adaptation hypothesis, and the selection hypothesis. We then use data from the Fragile Families and Child Wellbeing Study and an array of rigorous statistical methods to isolate effects of current incarceration and recent incarceration on happiness. The results suggest that current incarceration has hedonic consequences, leading to statistically significant reductions in happiness across a range of statistical models. Indeed, current incarceration is the only factor more strongly correlated with current happiness than prior happiness. Furthermore, the indirect effects of imprisonment do little to explain these hedonic consequences, providing support for the pains of imprisonment hypothesis. The only inmates whose happiness does not

20 citations


Journal Article
TL;DR: In this paper, the authors argue that judges' sentences are subconsciously anchored by the calculated Guidelines range, and propose a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress.
Abstract: Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range. This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

16 citations



Journal Article
TL;DR: In this paper, the authors argue that forensic flaws persist and that deficiencies in forensic science have harrowing implications for criminal justice, and they call for collaboration between crime labs, universities and research centers with the goal of making forensic science more reliable.
Abstract: This Article emphasizes that forensic flaws persist and that deficiencies in forensic science have harrowing implications for criminal justice. In the wake of numerous calls for forensic reform, I propose that we use existing models and frameworks already in place to improve the quality and cost of the U.S. forensic science program, rather than creating an entirely new and unaffordable system. At bottom, this Article calls for collaboration between crime labs, universities and research centers, and the criminal justice system with the goal of making forensic science more reliable.

9 citations






Journal Article
TL;DR: In this paper, the authors argue that the Batson regime has proven spectacularly unsuccessful in preventing racial discrimination in jury selection and does not adequately safeguard the rights of the excluded jurors.
Abstract: Peremptory challenges enable litigants to remove otherwise qualified prospective jurors from the jury panel without any showing of cause, and accordingly are often exercised on the basis of race. In Batson v. Kentucky, the Supreme Court tried to remedy the most obvious abuses by requiring that strike proponents give a “race neutral” reason for the strike, and directing trial courts to assess the credibility of the explanation. But the Batson regime has proved spectacularly unsuccessful. It has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors. One of the reasons for this failure is that the Batson framework rests on psychologically naive theories of human behavior. These are that (1) considerations of race can be purged from the jury selection process, (2) lawyers will be aware of their motivations for striking particular jurors and will report these reasons honestly, and (3) judges will be able to distinguish between honest and dishonest explanations. But these theories are inconsistent with recent advances in cognitive psychology, which suggest instead that most of us retain implicit biases against racial minorities, even when we believe ourselves unbiased. The other weakness of Batson is that, despite its juror-centered conception of rights, enforcement is overwhelmingly a matter of adversarial preference. Lawyers infrequently raise Batson issues, and even when they do, judges often fail to grant Batson motions because of the implied judgment that the strike’s proponent is a racist, a liar, or both. Drawing on empirical studies, psychological research, and the emerging school of behavioral realism, I argue that we need to change our approach. If implicit bias is indeed a pervasive fact, then we need to find effective ways to prevent it from dictating outcomes. I therefore propose that we jettison the inherently unstable framework of Batson and allow peremptory challenges only on consent of both parties, with the challenges waived if no agreement is reached. Some of the benefits of this proposal would be similar to abolition of the peremptory challenge: less litigation, a more robust safeguard against racial discrimination, and potentially broader participation by prospective jurors. But because negotiation could retain the use of peremptory challenges on consent, it would better preserve party autonomy and the acceptability of verdicts. Ultimately, negotiating peremptory challenges could protect the rights of the excluded jurors, preserve the original benefits of the peremptory challenge, and maintain the dignity of all participants.