Criminal Law


Reimagining the Violence Against Women Act from a Transformative Justice Perspective: Decarceration and Financial Reparations for Criminalized Survivors of Sexual and Gender-Based Violence

Shirley LaVarco

While the Violence Against Women Act (VAWA) has long been venerated as a major legislative victory for those subjected to sexual and gender-based violence (S/GBV), VAWA is less often understood as the funding boon that it is for police, prosecutors, and prisons. A growing literature on the harms of carceral feminism has shown that VAWA has never ensured the safety of Black and Brown women; queer, trans, and gender-nonconforming people; sex workers; drug users; poor, working class, homeless, and housing insecure people; migrants; and others who do not fit the “everywoman” archetype; nor has it recognized their right to protect themselves from violence.

I contribute to this literature in three ways: First, drawing from the rich narrative traditions of critical race theory and critical legal studies, I tell untold and undertold stories of state violence against victims of S/GBV. Second, I weave together knowledge produced by scholars across disciplines, as well as by transformative justice organizers and practitioners, to situate my illustrations in a landscape of carceral violence. Third, I build on the written work of those scholars, organizers, and practitioners to propose transformative justice approaches to S/GBV. Specifically, I propose that we use VAWA to meet the demand that all criminalized survivors be freed by incentivizing the expanded use of state executives’ clemency powers, as well as by expanding the use of clemency at the federal level. I also argue that an anti-carceral VAWA must include financial reparations for criminalized survivors, as compensation for the harms that the state has inflicted on them through unjust prosecutions and imprisonment, as well as for the violence they have been forced to endure in prisons, jails, and the custody of police officers.

Digital Privacy for Reproductive Choice in the Post-Roe Era

Aziz Z. Huq, Rebecca Wexler

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.

This Article offers an in-depth analysis of the core legal issues concerning abortion related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.

Strict Liability Abolition

Michael Serota

This Article reinvigorates the case for abolishing strict liability in the criminal law.
Undertaking an intellectual history of mens rea policy, I spotlight two assumptions
that have fueled strict liability’s historic rise and current deprioritization in criminal
justice reform. One assumption is that eliminating culpable mental states from
criminal statutes is an effective means of reducing crime. The other assumption is
that adding culpable mental states to criminal statutes is an ineffective means of
lowering prison rates or promoting racial justice. This Article argues that these
assumptions are unsupported by available evidence and have no place in criminal
policymaking. Synthesizing decades of social science research, I first explain why
there is little reason to believe that strict liability promotes public safety. Next,
building upon the first-ever legal impact study of mens rea reform, I explain how
adding culpable mental states to criminal statutes could alter charging practices and
conviction rates. I then demonstrate the racial justice benefits of universal mens rea
standards by highlighting the concentration of strict liability in offenses disparately
enforced against people of color. Through this deeper understanding of mens rea
policy, the Article reveals the strength of the case against strict liability, and why
culpable mental state requirements are an important tool in the fight against mass

Juvenile Life With(out) Parole

Rachel E. Leslie

Beginning in the late twentieth century, the Supreme Court gradually restricted the
range of punishments that could be imposed on children convicted of crimes. The
seminal cases
Graham v. Florida, Miller v. Alabama, and Montgomery v.
Louisiana banned the imposition of mandatory life without parole sentences on
children who were under eighteen at the time of an offense and held that those
juveniles must be given a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Some courts have extended the logic of
these cases to invalidate life with parole sentences based on extremely long parole
ineligibility periods, but no court has held that the practical unavailability of release
within the current parole system makes any life sentence—regardless of its parole
ineligibility period—functionally equivalent to life without parole.

Building on recent scholarship about the constitutional role of parole release in
juvenile sentencing, this Note points out that the
Graham trilogy creates a substantive
Eighth Amendment right for juveniles to be released upon a showing of
maturity and rehabilitation, not merely a right to be considered for release. This
Note exposes the failure of state parole systems to vindicate this right by systematically
refusing to grant parole to juveniles. Because release on parole is a statistical
improbability for juveniles sentenced to life with parole, this Note concludes that
those sentences are actually unconstitutional sentences of de facto juvenile life
without parole.

Policing Pregnancy “Crimes”

Valena E. Beety, Jennifer D. Oliva

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.

Doubling Down: Inconsistent Prosecutions, Capital Punishment, and Double Jeopardy

Vedan Anthony-North

There is a practice among prosecutors whereby they pursue incompatible theories
of a case against two or more defendants for criminal behavior for which, factually,
only one defendant can be culpable. While it’s difficult to determine just how fre-
quently these arguments are made, at least twenty-nine people have been con-
demned to death in cases where the defense has alleged inconsistencies, and seven
of those twenty-nine people have been executed. Situations like these cut against our
moral and ethical understanding of fairness and of justice; these arguments operate
in a world detached from reality, where factually singular acts can have multiple
agents, prosecutors are not accountable to a consistent narrative, and factfinders are
asked to make ultimate determinations of death based on factual impossibilities.
But finding ways to challenge the practice has, frustratingly, fallen short in pro-
viding legal relief to the condemned.

This Note looks beyond the due process and Eighth Amendment arguments against
this practice that have not provided fertile ground for protecting criminal defen-
dants from this type of vindictive approach to sentencing. Instead, this Note makes
a normative argument that the history of the Fifth Amendment’s Double Jeopardy
Clause, along with civil law principles of collateral estoppel that have been incorpo-
rated into the criminal law through the Clause, and protections against vindictive
sentencing practices that undergird the Clause bars this practice. In other words,
this Note argues that double jeopardy preclusion principles bar prosecutors from
relitigating issues of ultimate culpability in successive cases. This solution draws on
the Supreme Court’s only consideration of this issue
—Bradshaw v. Stumpf—which
makes an analytical distinction between the consequences of this practice on convic-
tion and consequences on sentencing.

The Racial Injustice and Political Process Failure of Prosecutorial Malapportionment

Michael Milov-Cordoba

District attorneys are responsible for the vast majority of criminal prosecutions in the United States, and most of them are elected by the public from prosecutorial
districts. Yet these districts are massively malapportioned, giving rural, dispropor-
tionately white voters significantly more voting power over their district attorneys
than urban voters, who are more likely to be voters of color. At the same time, our
district attorney system is characterized by the sorts of political process failures that
both triggered the Supreme Court’s Apportionment Revolution—requiring that leg-
islative and executive districts comply with one-person, one-vote—and justify judi-
cial intervention in other voting rights contexts. This Note argues that extending
one-person, one-vote to prosecutorial districts would meaningfully address
prosecutorial political process failure and have a number of salutary effects on our
democracy: It would rebalance the distribution of voters’ influence over district
attorneys, producing salutary downstream effects on our criminal justice system; it
may increase challenger rates, leading to healthier levels of prosecutorial demo-
cratic competition; and it would further core democratic norms, including respect
for the equal dignity of voters.

Police Quotas

Shaun Ossei-Owusu

The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are generating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus: police quotas.

Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and overcriminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litigation have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.

This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of punishment in ways that can trump criminal offending and pervert due process principles. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conservatives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article supplements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes.

The Peter Parker Problem

W. David Ball

Sandra Mayson, in her article Dangerous Defendants, points out the ways in which pretrial detention on the basis of public safety risk violates the “parity principle”—a measure of decisionmaking fairness that evaluates whether individuals of like risk are treated alike. As Mayson convincingly argues, if public safety risk is what justifies detention of those who have been arrested, it should also justify preventative detention of similarly risky people who remain in the community at large. In other words, merely having a person in custody does not logically change the analysis of the risk they present or what should be done with them.

In this Article, I argue that psychological factors, not assessments of risk, can explain why the parity principle is violated. A person in custody and a person in the community may present the same level of public safety risk, but the human brain typically uses heuristics, not calculations, to make decisions. Our brains want to minimize losses and regret. Whenever something bad happens, our brains automatically generate counterfactuals—the “if only I had done X” hypotheticals that allow us to imagine (and believe in) a world where tragedy would have been avoided. Counterfactuals that eliminate harm are easy to generate when someone is in custody, but hard to generate when someone is at large, and our brains conflate ease of generation with real-world probability. Counterfactuals, then, may help explain why the pretrial, public safety default seems to be to keep someone locked up, “just in case”—and why this desire is resistant to information and argument.

This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release decisions. Judicial discretion may be biased towards incapacitation by operating on the “gut level” of psychology—even if the harms of detention outweigh the benefits. Across the United States, jails contain thousands of prisoners who could be released safely, who could resume work and the rest of their lives, but who remain incarcerated because of the fear that one of them might commit a sensational crime. The insights of this Article may also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and the removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation. By applying theories of the counterfactual proposed by Neal Roese and other behavioral psychologists, the Article provides an explanation for why, even when regulations change, judicial decisions to release arrestees may remain low. It suggests that experimental research specifically targeting judicial counterfactual thinking should be conducted.

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