Center for Criminal Justice

Center for Criminal Justice

Center for Criminal Justice

Police car on a city street

Research

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished... MORE
How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial... MORE
In several U.S. jurisdictions, prosecutors charge defendants with nonexistent criminal offenses. Sometimes the crimes do not factually exist, meaning... MORE
Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for... MORE
Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing to pretrial... MORE
In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of... MORE
Prior research largely has explored judicial attitudes toward risk assessment in sentencing. Little is known about how other court actors,... MORE
Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections... MORE
Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on... MORE
Two kinds of recurring events – police violence and political protests – highlight some of the tensions between criminal justice administration and... MORE
Objection rules enforced by forfeiture penalties make the right to appeal contingent on whether the party injured by an opponent’s or judge’s error... MORE
The increasing use of risk assessment algorithms in the criminal justice system has generated enormous controversy. Advocates emphasize that... MORE
There is no single cause of America’s opioid crisis. But unethical physicians and unscrupulous prescription practices undoubtedly have contributed.... MORE
Justice Thomas’s dissent in Flowers v. Mississippi has been met with disdain in the popular press. In the New Yorker, Jeffrey Toobin declared Justice... MORE
Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial... MORE
Those who wish to control, expose, and damage the identities of individuals routinely do so by invading their privacy. People are secretly recorded... MORE
This chapter for the Oxford Handbook of Criminal Process offers a critical, comparative account of pretrial evidence disclosure laws in common law... MORE
Every generation’s intimates have their preferred modes of self-disclosure. Not long ago, intimate partners exchanged love letters and mixed tapes.... MORE
Fingerprint examiners regularly participate in tests designed to assess their proficiency. These tests provide information relevant to the weight of... MORE
In a series of recent cases, the Supreme Court has vigorously applied the presumption against extraterritoriality to curtail the territorial reach of... MORE
Virginia's sentencing guidelines include alternative sanctions based on the use of a quantitative instrument called the Nonviolent Risk Assessment (... MORE
Police officers shoot an unarmed man or woman. The victim’s family and community cry out for someone to be held accountable. In minority communities... MORE
Since the end of Reconstruction, the criminal jury box has both reflected and reproduced racial hierarchies in the United States. In the Plessy era,... MORE
Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain... MORE
This essay makes two claims: transparency in government causes the very corruption it aims to prevent, and the problem is universal. Some scholars... MORE
Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts... MORE
Despite mass incarceration and overcriminalization, underenforcement of criminal law is an endemic problem. It is the target of prominent reform... MORE
At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating... MORE
This paper uses a natural experiment to analyze whether incarceration during the pretrial period affects case outcomes. In Philadelphia, defendants... MORE
The assessment of an offender’s risk of recidivism is emerging as a key consideration in sentencing policy in many American jurisdictions. However,... MORE
Recent years have seen a rush toward evidence-based tools in criminal justice. As part of this movement, many jurisdictions have adopted actuarial... MORE
A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a... MORE
This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible... MORE
One way to reduce mass incarceration and the fiscal and human sufferings intrinsic to it is to engage in a morally constrained form of risk... MORE
In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to... MORE
Objective: This research examined the frequency of and characteristics associated with three forms of violence among persons with mental illness—... MORE
I conduct a series of tests of peer influence in juvenile incarceration facilities motivated by three mechanisms: criminal skill transfer, the... MORE
The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from... MORE
The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice. But, by focusing on trial... MORE
This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a... MORE
Rules of pretrial evidence disclosure vary widely in state criminal justice systems. In all states discovery is more restricted than it is in civil... MORE
Federal courts have limited the legal remedies for constitutional violations in policing to the point that they do not discourage police misconduct... MORE
This essay explores the critical relationship between Terry v. Ohio and contemporary proactive policing strategies. Unlike most Supreme Court cases... MORE
In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of... MORE
While many extoll the potential contribution of risk assessment to reducing the human and fiscal costs of mass incarceration without increasing... MORE
Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall... MORE
The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is... MORE
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated... MORE
It’s been more than forty-four years since the National Commission on Marihuana and Drug Abuse (“the Commission”) recommended decriminalization of... MORE
Computer crime statutes prohibit accessing a computer without “authorization.” In recent years, this element has attracted considerable controversy... MORE
A small group of individuals with mental illness is repeatedly involved in violence. Little is known about how often and how consistently these high-... MORE
How would society react to “the Watcher,” a technology capable of efficiently, unerringly, and immediately reporting the perpetrator of virtually... MORE
The positive law model of the Fourth Amendment maintains that a search or seizure occurs if, but only if, a private party could not lawfully perform... MORE
The fight over how to govern the police has become the most controversial legal topic in American politics, yet American lawyers are often are... MORE
Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make... MORE
This short comment on Natapoff’s “Misdemeanor Decriminalization” (2015) offers reasons for skepticism about how broadly we can expect... MORE
In the past decade, developmental brain research has had an important influence on juvenile crime regulation. More recently, advocates and some... MORE
Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects,... MORE
In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It... MORE
Free Market Criminal Justice explains how faith in democratic politics and free markets has undermined the rule of law in US criminal process.... MORE
Joe Giarratano was on death row for twelve years, and remains incarcerated today, because mental illness and severe emotional distress wholly... MORE
Highly publicized incidents in which people with apparent mental illnesses use guns to victimize strangers have important implications for public... MORE
Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve... MORE
The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s... MORE
The Foreign Account Tax Compliance Act (FATCA) represents a powerful response by the United States to flagrant offshore tax evasion. Although the new... MORE
This manuscript responds to Income Tax Discrimination: Still Stuck in a Labyrinth of Impossibility by Professors Michael Graetz and Alvin Warren (121... MORE
After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of... MORE
This paper develops three observations triggered by Whitman's account of penal modernism; all relate to criminal law in the context of American... MORE
This encyclopedia entry provides an overview of law governing the police. As it notes, police officers are granted immense authority by the state to... MORE
The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably... MORE
American and English criminal law is characterized by wider use of strict liability than one finds in the criminal law of many European... MORE
This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely... MORE
A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally... MORE
Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal... MORE
In his insightful article, "The Dangers of Surveillance," 126 Harvard Law Review 1934 (2013), Neil Richards offers a framework for evaluating the... MORE
In recent years, and especially in reaction to actual and perceived security threats, there has been a growing interest in so-called preventive... MORE
For the past eighty years, the entrapment doctrine has provided a legal defense for those facing federal prosecution, but only for those defendants... MORE
The Wickersham Commission report on The Third Degree, found in the Commission’s famous Report on Lawlessness in Law Enforcement ended with the... MORE
This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral... MORE
This essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to... MORE
The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving... MORE
The U.S. Sentencing Guidelines restrict judicial discretion in part to reduce unwarranted racial disparities. However, judicial discretion may also... MORE
This paper, written as a chapter for a forthcoming volume on international comparisons of prosecutors’ roles in various jurisdictions, provides a... MORE
Two reform movements transformed American criminal law in the four decades that began in the late 1960s. Their origins and effects were starkly... MORE
With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police... MORE
In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining... MORE
This Comment examines the current state of the Bivens doctrine in light of the Supreme Court's recent holding in Minneci v. Pollard. The author... MORE
This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are... MORE
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and... MORE
This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that... MORE
Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice... MORE
This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of... MORE
The contemporary criminal justice system disposes of order-maintenance cases without much of any substantive litigation or public influence or... MORE
To determine whether holding an individual suffering from a mental health crisis for a longer period under a temporary detention order (TDO)... MORE
A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the... MORE
The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants... MORE
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present,... MORE
Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. In a forthcoming article... MORE
We study whether changes to standards of review affect district court sentencing decisions under the United States Sentencing Guidelines.... MORE
In a forthcoming article, entitled "The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants," Adam Gershowitz and... MORE
In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or... MORE
In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or... MORE
Criminal law has long included far too many crimes of questionable merit — crimes of negligible wrongfulness, crimes that cause negligible harm,... MORE
Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative... MORE
The determinative issue in applying the insanity defense is whether the defendant experienced a legally relevant functional impairment at the time... MORE
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “... MORE
Criminal law has long included far too many crimes of questionable merit — crimes of negligible wrongfulness, crimes that cause negligible harm, and... MORE
Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and... MORE
Prior to the Supreme Court’s recent opinion in Arizona v Gant,  it was standard practice under New York v Belton for police to conduct a search... MORE
Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring... MORE
The Supreme Court's Fourth Amendment doctrine regulating police violence, including its recent decision in Scott v. Harris, is unprincipled and... MORE
Criminal defendants' right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch.... MORE
This comment on Steve Smith's recent article, The Supreme Court and the Politics of Death, draws attention to data and political developments that... MORE
There is no constitutional law of criminal law per se, yet there are a number of constitutional boundaries dividing what legislatures can criminalize... MORE
This Article intends to resolve the debate over whether requiring specificity in legal rules reduces the discretion that legislatures can delegate to... MORE
This Article intends to resolve the debate over whether requiring specificity in legal rules reduces the discretion that legislatures can delegate to... MORE
It is commonly thought that the United States is a highly legalistic nation, and as a result it is commonly thought as well that official... MORE
My assignment is to comment on the Supreme Court’s 5-4 decision in Panetti v. Quarterman, holding that a delusional mentally ill prisoner who is... MORE
The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for... MORE
Two experiments find that support for civil commitment procedures for sexually violent predators is based primarily upon the retributive rather than... MORE
As long as some courts review the work of others, there will be situations where governing precedent shifts during the interim. Although such... MORE
There are estimates that 3.3 to 10 million children are exposed to domestic violence in their homes annually. For many children, this exposure... MORE
Arrests for drug offenses have nearly tripled since 1980, and more than 1,600,000 people were arrested for drug offenses in 2003. About 80% of these... MORE
The present sentencing debate focuses on which decisionmaker is best suited to make the sentencing decision. Competing positions in this debate... MORE
Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during... MORE
Most police departments defend controversial uses of force by individual officers in one of two ways: as well-intentioned but unfortunate responses... MORE
This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of... MORE
The contemporary critique of rape law proceeds from the premise that heterosexual intercourse is and should be lawful activity, and it assumes that... MORE
This paper will examine the legislative history of federal laws that target crimes against women and girls as a vehicle for exploring the manner in... MORE
Dozens of jurisdictions across the country are engaging in bail reform, but there are concerns that reducing monetary incentives will increase... MORE
We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony... MORE