Showing papers in "Journal of Criminal Law & Criminology in 2018"

The Effects of Body-Worn Cameras on Police Activity and Police-Citizen Encounters: A Randomized Controlled Trial

Abstract: Many have suggested that placing body-worn cameras (BWCs) on police officers improves the civility of police-citizen encounters and enhances citizen perceptions of police transparency and legitimacy. In response, many police departments have adopted this technology to address public concerns over the quality of policing in their communities. The existing program evaluation evidence on the intended and unintended consequences of outfitting police officers with BWCs is still developing, however. This study reports the findings of a randomized controlled trial involving more than 400 police officers in Las Vegas, Nevada. We find that officers equipped with body-worn cameras generated fewer complaints and use of force reports relative to officers without cameras. BWC officers also made more arrests and issued more citations than their non-BWC counterparts. The findings of this randomized controlled trial raise the possibility that planning for the placement of BWCs on officers should consider the competing effects of improvement in civilian perceptions of police generated by reductions in complaints and use of force incidents and of public concerns about increased enforcement activity.

The Downstream Effects of Bail and Pretrial Detention on Racial Disparities in Incarceration

Abstract: Bail and pretrial detention decisions may have important consequences for racial disparities in incarceration rates. Poor minority defendants who are unable to post bail and get released from jail before trial may be more likely to plead guilty and accept longer sentences of incarceration. Racial disparities in incarceration sentences may then reflect a combination of differences in the seriousness of a defendant’s case, criminal history, and economic resources to pay bail. This study examines the extent to which bail decision-making and pretrial detention explain Black-White disparities in criminal adjudications and sentences in the Delaware courts from 2012 to 2014. Over 80% of all criminal defendants have a bond imposed on them before their adjudication. Almost a third of cases involve pretrial detention. After controlling for measured differences in a variety of case characteristics, including severity of charges and criminal histories, cash-only bail and pretrial detention increase a defendant’s likelihood of conviction and pleading guilty, being incarcerated, and receiving a longer incarceration sentence. Bail and pretrial detention also contribute to 30% to 47% of the explained Black-White disparity in these court dispositions. Careful examination of cash-only bail, bail amount, and pretrial detention policies may help reduce racial disparities in incarceration.

Unmarked? Criminal Record Clearing and Employment Outcomes

Abstract: An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we found evidence that: (1) the record clearing intervention boosted participants’ employment rates and average real earnings, and (2) people sought record clearing remedies after a period of suppressed earnings. More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase employment opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record.

Technological incarceration and the end of the prison crisis

Abstract: The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States. The alternative to prison that we propose involves the fusion of three technological systems. First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined. Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely by computers. Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes. The integrated systems described in this Article could lead to the closure of more than 95% of prisons in the United States. We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including the imposition of proportionate punishment and community protection. In our proposal, only offenders who have committed capital offenses or equivalent crimes, or who attempt to escape from technological custody, would remain in conventional brick-and-mortar prisons. As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly. If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What’s Next

Abstract: The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain how these earlier efforts both influenced and created the conditions for the third wave reforms that are now underway, including a “groundswell” of class action litigation that seeks to minimize pretrial detention by breathing new life into longstanding principles of equal protection and due process. We then analyze the impact of these third wave reforms nationwide, while using Cook County as a case study. The results suggest reason for both optimism and caution, particularly in jurisdictions where advocates have been willing to trade a more expansive scheme of preventive detention for the elimination of the cash bail system. We conclude with observations in support of a just system of pretrial release—one that relies neither on money bond nor on preventive detention measures. This system is one in which the vast majority of the presumptively innocent people charged with offenses are immediately released back into their communities. It is a system in which courts provide services rather than onerous conditions, to minimize failures to appear in court, mitigate recidivism, and ensure that communities are not decimated by unconstitutional pretrial detention. While this model is not without some societal risk, we contend it is the only tolerable outcome under our constitutional system.

Parental Prisoners: The Incarcerated Mother's Constitutional Right to Parent

Abstract: The United States prison population has grown at alarming and unprecedented rates in recent decades, with certain states imprisoning more individuals than entire countries. Recently, the number of incarcerated women has climbed faster than that of men. The high rate of female incarceration has devastating effects on society, as many women are mothers and primary caregivers. Furthermore, every year, a number of mothers give birth in prison. When this happens, the mother’s family and loved ones are often not permitted to be present. The mother gives birth in a room with only medical personnel and prison guards. She then generally has fewer than forty-eight hours to spend with her child before he or she is taken away. Sometimes the child is fortunate enough to live with other family members, but other times, the child is placed in the foster care system. Due to a number of restrictions and obstacles, many incarcerated women are forced to forfeit their paternal rights during incarceration. While some programs exist in the United States, for the most part, there are few avenues of support for incarcerated mothers. This Comment explores the possibilities currently available to incarcerated mothers, arguing that the Fourteenth Amendment to the United States Constitution guarantees the right to parent and that right should be extended to incarcerated mothers.

A Broken Windows Theory of Sexual Assault Enforcement

Abstract: The law of sexual assault is in conflict. Jurisdictions struggle with the conceptual shift from thinking of rape as forcible sex to a broader understanding that turns on the meaning of consent. Due to resource, evidentiary, and reporting problems there is a mismatch between the new substantive understanding of sexual assault and its actual enforcement. This has led to something of a cultural war by survivors and many women generally against the idea of “rape culture,” which runs the risk of categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive. This article proposes that lessons from broken windows policing can assist prosecutors in addressing the expressive gap between the law’s definition of sexual assault and the current realities of under-enforcement and victim disempowerment. I suggest that enforcement of existing laws against the lower level street harassment of women, on the occasions it already meets the elements of assault or sexual assault, will likely have two positive effects. First, while the efficacy of broken windows theory is hotly debated, to the extent that aggressive enforcement of lower level crimes of disorder does translate into a reduction in more serious offenses, more convictions for street harassment may result in a longer-term reduction in more serious sexual assaults that are much harder to detect and prove. Second, and perhaps more importantly, aggressive prosecution of even “harmless” non-consensual street harassment would help to resolve the expressive problems surrounding the law’s definition of non-consensual sex more broadly. This would combat—more concretely and less divisively—the norm of default access to female bodies than the amorphous, extra-legal critique of “rape culture” has thus far

Principles of Pretrial Release: Reforming Bail Without Repeating its Harms

Abstract: Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls. This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. As the options for pretrial conditions continue to expand, judges may impose more conditions than are necessary, including conditions that are burdensome and ineffective. Because pretrial monitoring is inexpensive—especially when subsidized by user fees for pretrial monitoring—there is a risk that courts will impose monitoring and other conditions on people who would previously have been released without conditions. Taken together, these harms can prolong people’s involvement in the criminal justice system, restrict their liberty in profound ways, set them up for pretrial incarceration through technical violations, and saddle them with unaffordable debts. To responsibly use conditional release without replicating the harms of money bail, jurisdictions should adopt the following five principles. One, release on recognizance should be the norm and conditional release the exception. Two, the principle of parsimony should guide decisions over what conditions of release to impose—meaning that burdens placed on defendants and restrictions of their liberty should not exceed the legitimate interests of the government. Three, conditions should be minimal, related to the charged conduct, and proportionate to the risk of flight and pretrial criminal activity. Four, jurisdictions should not charge fees for conditional release, pretrial services, or pretrial monitoring. Five, restrictions on pretrial liberty should be evidence-based.

Employment Discrimination on the Basis of Criminal History: Why an Anti-Discrimination Statute is a Necessary Remedy

Abstract: The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal records due to fear of liability and the social stigma that frequently attaches to formerly incarcerated individuals. While some remedies exist for returning citizens to clear their record from public view and (in theory) get a clean slate, they are inadequate. This Comment will describe the four most predominant remedies that purport to address the problem of employment discrimination against persons with criminal records: 1) expungement statutes; 2) Fair Credit Reporting Act protections in the context of background checks; 3) Title VII claims; and 4) ban the box provisions. It will then explain how each of these remedies fails to rectify the problem. This Comment argues that an anti-discrimination statute that bans employment discrimination against individuals with criminal records is necessary in order to benefit both the individuals themselves and society as a whole. The conclusion discusses the design of such a statute and ways that legislators should work together to ensure its passage.

Virtual Shackles: Electronic Surveillance and the Adultification of Juvenile Courts

Abstract: In recent years, there has been a groundswell of attention directed at problems within the American criminal justice system, led in part by Michelle Alexander’s groundbreaking book, The New Jim Crow, and most recently through the efforts of the Black Lives Matter movement. This increased focus on the harms of over-incarceration and net-widening, has had the benefit of introducing to the public other practices utilized in the criminal justice system, such as the widespread use of ankle monitors to track the location of defendants and released offenders. Yet, despite this greater attention, legal scholarship has only recently begun to grapple with many of the issues arising at the intersection of criminal justice and technology, and even more, how these issues affect the juvenile justice system. This paper seeks to draw attention to and generate greater discussion on the ways in which advancing surveillance technologies are deployed in the criminal justice system and the reciprocal impact it has on the development of juvenile justice policies and practices. Specifically, it examines the use of electronic surveillance technology by juvenile courts as a manifestation of adultification, where juvenile courts adopt a “one size fits all” approach and implement tools and practices from the adult criminal justice system, despite having great discretion to explore alternatives. This paper analyzes these connections and argues that correctional practices, adopted from the adult criminal justice system for implementation with youth, should be validated for effectiveness by social science evidence and community-informed policymaking. This form of accountability is crucial not only for garnering critical reflection on the use of electronic surveillance, but also for positioning juvenile courts to make better decisions in the future when contemplating adoption of even more advanced and powerful surveillance technologies.

The Fourth Amendment in the Age of Persistent Aerial Surveillance

Abstract: If Big Brother made movies, persistent aerial surveillance would be its masterpiece. Small airplanes are rigged with high-tech cameras that can continuously transmit real-time images to the ground. The aircraft is able to monitor an area of thirty square miles for ten hours at a time. This technology allows video analysts to zoom in and track the location of vehicles, and even people. It was originally designed for military use during the Iraq War, but since then, it has been adapted for civilian applications. In 2016, the Baltimore Police Department contracted with Persistent Surveillance Systems to carry out a trial run of aerial surveillance over the city. The public was not informed that they were being watched every day. The Supreme Court has long held that aerial surveillance itself does not constitute a search for the purposes of the Fourth Amendment. The persistency of this new kind of reconnaissance changes the calculus. Specialized airplanes enable law enforcement agencies to survey sizable regions for hours on end. It is precisely this power that makes persistent aerial surveillance more like constant GPS monitoring, which the Court has already considered a search. These modes of long-term observation are intrusive and violate a reasonable expectation of privacy. Police action must be analyzed over time as a collective sequence of steps, not just an individual instance. The aggregate search can qualify under the Fourth Amendment, even if the individual steps did not. This is because prolonged surveillance reveals privacies and intimate details of life that short-term surveillance does not. Repetition, indeed habit, are cornerstones of personality and identity. People may reasonably expect some form of surveillance. People may also expect those observations to remain disconnected and nondescript. This technology presents intriguing opportunities for law enforcement departments, in the investigation of crime, the presentation of evidence at trial, deterrence and crime reduction, exonerating the wrongfully convicted, and even traffic management and highway control. These advantages are not enough—and will never be enough—to avoid the command of the Constitution. Over time, the public has become more accepting of the surveillance state. The Constitution remains a counter-majoritarian check on the government. Absent probable cause and a warrant, persistent aerial surveillance is an unreasonable search that violates the Fourth Amendment.

Pre-Imprisonment Employment Drops: Another Instance of the Ashenfelter Dip?

Abstract: A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

The republican party, conservatives, and the future of capital punishment

Abstract: The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against the death penalty: its incompatibility with limited government, fiscal responsibility, and promoting a culture of life. Understanding Republican opposition to capital punishment takes on particular importance now following setbacks to efforts against the death penalty in the 2016 election. In this environment, building support among Republicans and conservatives likely will prove critical for taking further steps toward limiting and eventually ending the death penalty in the United States.

The Thin Blue Line from Crime to Punishment

Abstract: Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal law cannot continue to ignore the police.

Now You See Me: Problems and Strategies for Introducing Gender Self-Determination into the Eighth Amendment for Gender Nonconforming Prisoners

Abstract: As the fight for transgender rights becomes more visible in the United States, the plight of incarcerated transgender individuals seeking medical care behind bars is likewise gaining attention—and some trans prisoners are gaining access to gender-affirming care. However, progress for incarcerated members of the trans community has been slow, piecemeal, and not without problems. As federal court opinions in Eighth Amendment access-to-care cases brought by trans prisoners show, how a court interprets the subjective intent requirements of the Eighth Amendment and how the imprisoned plaintiff pleads his/her/their case can make or break the claim. Further, courts and plaintiffs rely on medical diagnoses often couched in fixed binary transition to make a cognizable constitutional claim for medical care. For incarcerated gender nonconforming (“GNC”) individuals, the established binary-based medical diagnoses increasingly accepted by courts and prison officials may not reflect GNC individuals’ gender identities or medical needs. However, utilizing updated medical standards that enable patient gender self-determination in Eighth Amendment claims may extend Eighth Amendment protection to GNC people in American prisons. Deploying medical standards that are not aimed at binary transition in Eighth Amendment litigation can provide an avenue for incarcerated GNC individuals both to regain some power of gender self-determination and to ensure GNC prisoners have access to the gender-affirming medical care to which they are entitled.