AuthorTitleCitationSummaryYearKey Terms in Title or Summary
Jackson Whetsel, Esq. (UN)CONSTITUTIONAL CARRY: HOW DRUG AND GUN LAWS CONSPIRE IN STAND YOUR GROUND STATES TO CREATE A DISARMED, SUBMISSIVE CLASS BASED ON RACE 53 University of Memphis Law Review 571 (Spring, 2023) Introduction. 572 I. Tennessee's Form of Constitutional Carry. 577 A. The Tennessee Law Creates an Exception to an Existing Prohibition. 578 B. The Tennessee Law Does Not Remove Any Existing Firearm Prohibitions. 580 C. The Tennessee Law Applies to The Intent to Go Armed. 584 II. How Did We Get Here? DC v. Heller and the Constitutional Basis... 2023  
Samantha Buckingham ABOLISHING JUVENILE INTERROGATION 101 North Carolina Law Review 1015 (May, 2023) Rehabilitation is a paramount consideration in abolishing police interrogation of youth. Interrogation is one of the first interactions young people have with the criminal legal system. Unfortunately, the most common methods of interrogation are coercive rather than consensual. Youth are uniquely vulnerable to coercive methods, especially in... 2023  
Benjamin Levin AFTER THE CRIMINAL JUSTICE SYSTEM 98 Washington Law Review 899 (October, 2023) Abstract: Since the 1960s, the criminal justice system has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the criminal justice system. Instead, they have opted for critical... 2023 yes
Sabrina Balgamwalla , Lauren E. Bartlett ANTI-CARCERAL THEORY AND IMMIGRATION: A VIEW FROM TWO LAW SCHOOL CLINICS 67 Saint Louis University Law Journal 491 (Spring, 2023) This article explores clinical teaching philosophies related to anti-carceral theory and provides examples of how to support student learning in clinics serving immigrant clients. Anti-carceral theory in this context is used to refer to an approach that resists criminalization and incarceration within law, drawing on abolitionism, intersectional... 2023 yes
Belinda Lee BOLSTERING BENEFITS BEHIND BARS: REEVALUATING EARNED INCOME TAX CREDIT AND SOCIAL SECURITY BENEFITS DENIALS TO INMATES 98 New York University Law Review 331 (April, 2023) This Note describes how the tax system treats inmates, an intersection that has been relatively understudied by both tax and criminal justice scholars. The Note provides a detailed account of how inmates earn income through prison labor (what goes in) and the benefits denied to inmates (what comes out, or rather what often does not come out). The... 2023  
Mackenzie Philbrick BUDGETING FOR EXONEREE COMPENSATION: INDEMNIFYING EXONEREES NOT OFFICIALS TO DETER FUTURE WRONGFUL CONVICTIONS 50 Fordham Urban Law Journal 797 (April, 2023) As survivors of state harm, exonerees are often woefully undercompensated compared to present jury awards for wrongful incarceration. Furthermore, by precluding exonerees who have falsely confessed or pled guilty from receiving state compensation, lawmakers squander an opportunity to increase police accountability going forward, further stacking... 2023 yes
Kate Weisburd CARCERAL CONTROL: A NATIONWIDE SURVEY OF CRIMINAL COURT SUPERVISION RULES 58 Harvard Civil Rights-Civil Liberties Law Review 1 (Winter, 2023) The day-to-day operation of criminal court supervision--including probation, parole, and electronic ankle monitoring--is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of... 2023  
Danieli Evans CARCERAL SOCIALIZATION AS VOTER SUPPRESSION 28 Michigan Journal of Race and Law 39 (Spring, 2023) In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment... 2023 yes
Jacqueline Pittman CONSTRUCTING RACE AND GENDER IN MODERN RAPE LAW: THE ABANDONED CATEGORY OF BLACK FEMALE VICTIMS 30 Michigan Journal of Gender & Law 151 (2023) Despite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law's history of allocating agency along gendered and... 2023  
Professor Mirko Bagaric , Jennifer Svilar , Brienna Bagaric CONTINUING PRINCIPLED SENTENCING REFORM AND WINDING BACK MASS INCARCERATION AGAINST THE BACKDROP OF AMERICA'S SURGE IN VIOLENT CRIME 23 Nevada Law Journal 411 (Spring, 2023) Five decades of an unremitting tough on crime policy resulted in the United States having the highest incarceration rate on earth. This approach was in the process of being systematically wound back in recent years. The mood for criminal justice reform was highlighted by the receptiveness of many people to what on their face seemed to be radical... 2023 yes
Matthew N. Rose CRIMINAL LAW--FEDERAL CONSPIRACY LAW--CHANGING THE WITHDRAWAL STANDARD FOR MEMBERS OF A CONSPIRACY 45 University of Arkansas at Little Rock Law Review 713 (Summer, 2023) Society widely accepts that throughout most of the twentieth century and all of the twenty-first century, the United States has had a mass incarceration problem. As of 2017, the United States contained twenty-five percent of the world's total prison population despite only making up five percent of the global population. The incarceration rate in... 2023 yes
Justin Rosas , The Law Office of Justin Rosas, Medford, Oregon, 541-245-9781, Email, Website, Twitter @RosasLaw DECARCERATING OUR COMMUNITIES, PSYCHES, AND PRACTICES: HOW HOLDING SPACE, EDUCATION, EMPOWERMENT, AND SPEAKING TRUTH TO POWER CAN DECONSTRUCT A RACIST SYSTEM 47-JUL Champion 42 (July, 2023) A democracy cannot thrive where power remains unchecked and justice is reserved for a select few. Ignoring these cries and failing to respond to this movement is simply not an option--for peace cannot exist where justice is not served. --John Lewis Calling out the plague of mass incarceration in the United States is a necessary first step in... 2023 yes
Saptarishi Bandopadhyay, Joshua R. Coene DISASTER RISK IN THE CARCERAL STATE 42 Stanford Environmental Law Journal 171 (May, 2023) I. Introduction. 173 II. A Sketch of the Carceral State. 184 A. Mass Incarceration, Excess, and Origins. 184 B. Prison Regimes and Risk Management: Between Incapacitation and Correctionalism. 192 C. The Production of Carceral Vulnerability. 197 III. Between Compassion and Security: Disaster Risk in the Managerial State. 200 A. Disaster Risk... 2023 yes
Katherine Beckett DIVERSION AND/AS DECARCERATION 86 Law and Contemporary Problems 103 (2023) Mass incarceration and mass criminalization are increasingly recognized as pressing social problems. U.S. incarceration and supervision rates began their unprecedented ascent in the 1970s, after which time the number of people under criminal legal supervision increased more than fivefold. Although the U.S. incarceration rate has declined notably... 2023 yes
Matthew L. Mizel , Michael Serota , Jonathan Cantor , Joshua Russell-Fritch DOES MENS REA MATTER? 2023 Wisconsin Law Review 287 (2023) Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state's impact on administration of a criminal statute. We focus on the U.S. Supreme Court's 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal... 2023  
Carissa Byrne Hessick , Michael Morse , Nathan Pinnell DONATING TO THE DISTRICT ATTORNEY 56 U.C. Davis Law Review 1769 (April, 2023) The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study... 2023  
Amber Kim EXPANDING THE AGENCY OF INCARCERATED PEOPLE 21 Seattle Journal for Social Justice 717 (Spring, 2023) There has been a lot of wonderful work around the concept of Non-Reformist Reforms and the importance of not expanding or reinforcing the carceral state and the Prison Industrial Complex (PIC). The collection of oppressive criminal justice policies which have resulted in mass incarceration and the exploitation of incarcerated labor. While much of... 2023 yes
S. Lisa Washington FAMMIGRATION WEB 103 Boston University Law Review 117 (February, 2023) A growing body of scholarship examines the expansive nature of the criminal legal system. What remains overlooked are other parts of the carceral state with similarly punitive logics and impacts. To begin filling this gap, this Article focuses on the convergence of the family regulation and immigration systems. This Article examines how the... 2023  
Mary Holper GANG ACCUSATIONS: THE BEAST THAT BURDENS NONCITIZENS 89 Brooklyn Law Review 119 (Fall, 2023) A teenager from El Salvador attends a high school that is populated mostly by Latine youth. He finds his friends in a group of boys. He gets into a scuffle with another boy. Little does he know, with each of these interactions, he has been accruing points in a database that tracks gang membership and affiliation. The friendships earn him two... 2023  
Deborah M. Weissman GENDER VIOLENCE AS LEGACY: TO IMAGINE NEW APPROACHES 34 Hastings Journal on Gender and the Law 55 (Spring, 2023) C1-2Table of Contents Introduction. 55 Part I. Defining RJ/TJ and Identifying the Challenges. 58 A. Restorative Justice (RJ). 58 B. Transformative Justice (TJ). 59 Part II. From Carceral Responses to Addressing the Political Economy of IPV. 61 Part III. The Turn to History. 64 Part IV. Restorative and Transformative Justice: Matters of Praxis... 2023  
Deborah M. Weissman GENDER VIOLENCE AS LEGACY: TO IMAGINE NEW APPROACHES 20 Hastings Race and Poverty Law Journal 55 (Spring, 2023) C1-2Table of Contents Introduction. 55 Part I. Defining RJ/TJ and Identifying the Challenges. 58 A. Restorative Justice (RJ). 58 B. Transformative Justice (TJ). 59 Part II. From Carceral Responses to Addressing the Political Economy of IPV. 61 Part III. The Turn to History. 64 Part IV. Restorative and Transformative Justice: Matters of Praxis... 2023  
Mugambi Jouet GUNS, MASS INCARCERATION, AND BIPARTISAN REFORM: BEYOND VICIOUS CIRCLE AND SOCIAL POLARIZATION 55 Arizona State Law Journal 239 (Spring, 2023) Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms. Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control. The United States has gravitated toward a peculiar social model combining extremely loose... 2023 yes
Kiricka Yarbough Smith, Maura Reinbrecht HOW ANTI-SEX TRAFFICKING EFFORTS SHOULD ALIGN WITH CRIMINAL JUSTICE REFORM 38 Berkeley Journal of Gender, Law & Justice 158 (2023) Current law enforcement practices--including efforts to address sex trafficking--disproportionately harm Black people. This Article proposes that front-end criminal justice reforms to reduce the criminalization of poverty, reform racially biased police practices, and increase police accountability could mitigate the disparate impact that policing... 2023  
Jhody Polk, Tyler Walton LEGAL EMPOWERMENT IS ABOLITION 98 New York University Law Review Online 282 (June, 2023) L1-2Introduction . L3282 I. The Story of Our Confluence: Jhody Asks, What Could Legal Empowerment Look Like in the United States?. 285 II. Incarceration and Abolition. 289 A. Tyler Experiences the Intellectual Incarceration of the Law. 290 B. Jhody Experiences Liberation Through Learning the Law. 291 C. Incarceration. 295 D. Interrogating... 2023 yes
Robert Sanger MASS INCARCERATION NATION, HOW THE UNITED STATES BECAME ADDICTED TO PRISONS AND JAILS AND HOW IT CAN RECOVER BY JEFFREY BELLIN, CAMBRIDGE UNIVERSITY PRESS (2023) 47-JUL Champion 57 (July, 2023) Mass incarceration in the United States is, or should be, at the top of the American agenda. Jeffrey Bellin's book, Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover, is truly impressive. It is written in an engaging narrative style but weaves in meticulous statistical support for its... 2023 yes
Aliza Hochman Bloom OBJECTIVE ENOUGH: RACE IS RELEVANT TO THE REASONABLE PERSON IN CRIMINAL PROCEDURE 19 Stanford Journal of Civil Rights & Civil Liberties 1 (April, 2023) There is overwhelming evidence that an individual's race affects how police treat them during a police encounter, and that Black Americans have substantial cause to worry about the consequences of ignoring or walking away from law enforcement. Accordingly, when courts determine whether a reasonable person feels free to decline, leave, or end an... 2023  
Bridget Boland PARENTING PRISON: HOW MASS INCARCERATION OF PARENTS AFFECTS CHILD DEVELOPMENT 43 Children's Legal Rights Journal 48 (2023) Mass incarceration refers to the reality that the United States (U.S.) incarcerates more people than any other nation in the world, spending over $80 billion on incarceration each year. Mass incarceration is a system of policing, prosecution, and incarceration that is rooted in, builds upon, and produces oppression as well as economic and racial... 2023 yes
Nicole Smith Futrell PRACTICING WITH CONVICTION: RACE, REENTRY, AND THE LEGAL PROFESSION 20 Ohio State Journal of Criminal Law 71 (Fall, 2023) Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial... 2023  
Laurie L. Levenson PROGRESSIVE PROSECUTORS: WINNING THE HEARTS AND MINDS OF LINE PROSECUTORS 60 American Criminal Law Review 1495 (Fall, 2023) The difficulty lies, not in the new ideas, but in escaping from the old ones .. The progressive prosecutor movement offers many critical proposals to reform our criminal justice system. However, it has not been able to fully accomplish its goals in many jurisdictions because the newly elected prosecutors have faced pushback, not just from... 2023  
Sheldon A. Evans PUNISHMENT EXTERNALITIES AND THE PRISON TAX 111 California Law Review 683 (June, 2023) Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of modern times. Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime... 2023 yes
Bennett Capers RACE, GATEKEEPING, MAGICAL WORDS, AND THE RULES OF EVIDENCE 76 Vanderbilt Law Review 1855 (November, 2023) Introduction. 1855 I. Race-ing Evidence. 1857 II. Frye, Daubert, Rule 702, and Magical Words. 1862 III. Reimagining Rule 702. 1872 Conclusion. 1876 2023  
Jessica Dixon Weaver RACIAL MYOPIA IN [FAMILY] LAW 132 Yale Law Journal Forum 1086 (4/30/2023) ABSTRACT. Racial Myopia in [Family] Law presents a critique of Family Law for the One-Hundred-Year Life, an Article that claims that age myopia within family law fails older adults and prevents them from creating legal bonds with other adults outside the traditional marital model. This Response posits that racial myopia is a common yet complex... 2023  
Jessica M. Eaglin RACIALIZING ALGORITHMS 111 California Law Review 753 (June, 2023) There is widespread recognition that algorithms in criminal law's administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law--tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may... 2023  
Jared Trujillo REDUCING MULTIGENERATIONAL POVERTY IN NEW YORK THROUGH SENTENCING REFORM 26 CUNY Law Review 225 (Winter, 2023) I. Introduction. 226 II. Incarceration Causes and Exacerbates Poverty. Poverty Causes Incarceration.. 229 A. Dire Impact of Incarceration on the Children of Incarcerated Parents. 233 B. Foster Care, Severed Family Bonds, and Youth Homelessness for Children with Incarcerated Parents. 235 III. How the Structure of New York's Sentencing Law Drives... 2023 yes
Thalia Gonz├ílez RESTORATIVE JUSTICE DIVERSION AS A STRUCTURAL HEALTH INTERVENTION IN THE CRIMINAL LEGAL SYSTEM 113 Journal of Criminal Law and Criminology 541 (Summer, 2023) A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system--whether in policing practices or carceral settings--leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement... 2023  
Kate Weisburd RIGHTS VIOLATIONS AS PUNISHMENT 111 California Law Review 1305 (October, 2023) Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights--such as the rights to marry, bear children, worship, consult a lawyer, and protest--be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not cruel and unusual under the Eighth Amendment?... 2023  
Sydney McConnell SENTENCED TO PRISON, NOT TO DEATH: HOME CONFINEMENT DURING THE PANDEMIC AND MOVING BEYOND COVID-19 75 Arkansas Law Review 929 (2023) A prison sentence should not include incurring a great and unforeseen risk of severe illness or death. But for the 2.3 million people housed in our nation's prisons and jails during the COVID-19 (COVID) pandemic, their sentences have included just that. The United States boasts the world's highest incarceration rate, and as difficult and deadly... 2023 yes
Paul Butler SISTERS GONNA WORK IT OUT: BLACK WOMEN AS REFORMERS AND RADICALS IN THE CRIMINAL LEGAL SYSTEM 121 Michigan Law Review 1071 (April, 2023) Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom. By Derecka Purnell. New York: Astra House. 2021. Pp. 288. Cloth, $28. Paper, $18. Progressive Prosecution: Race and Reform in Criminal Justice. Edited by Kim Taylor-Thompson and Anthony C. Thompson. New York: New York University Press. 2022. Pp. 312. $45. Black women are guiding... 2023  
Michael Serota STRICT LIABILITY ABOLITION 98 New York University Law Review 112 (April, 2023) 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... 2023  
Victoria Piehowski, Michelle S. Phelps STRONG-ARM SOBRIETY: ADDRESSING PRECARITY THROUGH PROBATION 48 Law and Social Inquiry 489 (May, 2023) Over the past half-century, the US welfare and penal systems have become increasingly fused modes of poverty governance. At the center of the welfare-penal continuum sits probation, a form of community supervision that operates as a central hub, directing people to both services and incarceration. Drawing on interviews with 166 adults on probation... 2023 yes
Trevor George Gardner THE CONFLICT AMONG AFRICAN AMERICAN PENAL INTERESTS: RETHINKING RACIAL EQUITY IN CRIMINAL PROCEDURE 171 University of Pennsylvania Law Review 1699 (June, 2023) This Article argues that neither the criminal justice reform platform nor the penal abolition platform shows the ambition necessary to advance each of the primary African American interests in penal administration. It contends, first, that abolitionists have rightly called for a more robust conceptualization of racial equity in criminal procedure.... 2023  
Paul J. Larkin , GianCarlo Canaparo THE FALLACY OF SYSTEMIC RACISM IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 18 Liberty University Law Review 1 (Fall, 2023) Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the war on the War on Drugs, it is a justification used by the so-called progressive prosecutors to reject the Broken Windows theory of law enforcement, and it is an article of faith of the Defund the Police! movement. Even President... 2023  
Kathryn A. Sabbeth, Jessica K. Steinberg THE GENDER OF GIDEON 69 UCLA Law Review 1130 (January, 2023) This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of... 2023  
Brianna Borrelli THE INTERPLAY OF MASS INCARCERATION AND POVERTY 30 Georgetown Journal on Poverty Law and Policy 287 (Winter, 2023) The United States has the highest incarceration rate of any country in the world, imprisoning over two million people. Not only does mass incarceration have great monetary costs for Americans as the United States spends over $250 billion each year on incarceration, but the United States also faces significant social costs as a result of mass... 2023 yes
Erin C. Blondel THE STRUCTURE OF CRIMINAL FEDERALISM 98 Notre Dame Law Review 1037 (March, 2023) Scholars and courts have long assumed that a limited federal government should stick to genuinely federal crimes and leave local crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime, and federal prosecutors regularly do seemingly local cases. Despite nearly unlimited... 2023  
Charisa Smith WHEN COVID CAPITALISM SILENCES CHILDREN 71 University of Kansas Law Review 553 (May, 2023) The lingering COVID-19 pandemic has ushered in policy developments that mar child and family wellbeing while effectively suppressing U.S. children in civic life. Although the prevailing framework for child-parent-state conflicts already antagonized families and disenfranchised youth, COVID Capitalism threatens to silence children on virtually... 2023  
Daniel S. Harawa WHITEWASHING THE FOURTH AMENDMENT 111 Georgetown Law Journal 923 (May, 2023) A conventional critical race critique of the Supreme Court and its Fourth Amendment jurisprudence is that it erases race. Scholars argue that by erasing race, the Court has crafted doctrine that is oblivious to people of color's lived experiences with policing in America. This Article complicates this critique by asking whether it is solely the... 2023  
Ryan Thoreson "DISCRIMINALIZATION": SEXUALITY, HUMAN RIGHTS, AND THE CARCERAL TURN IN ANTIDISCRIMINATION LAW 110 California Law Review 431 (April, 2022) As lesbian, gay, bisexual, and transgender (LGBT) rights gain traction around the globe, many states have turned toward carceral punishment as a means of sanctioning discrimination based on sexual orientation and gender identity. The carceral turn has been scrutinized in racial justice and feminist literature, but few queer scholars have grappled... 2022  
Darren Lenard Hutchinson "WITH ALL THE MAJESTY OF THE LAW": SYSTEMIC RACISM, PUNITIVE SENTIMENT, AND EQUAL PROTECTION 110 California Law Review 371 (April, 2022) United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks,... 2022  
Ian Wilder, Esq. 20 WAYS TO FIGHT HOUSING DISCRIMINATION 38 Touro Law Review 655 (2022) When looking at the continuing size of the problem of discrimination it is easy to be paralyzed into inaction by the sweeping scope of the undertaking. A good remedy is to find actions that an individual can take to move toward justice. Though Dr. King is often quoted as stating that the arc of the moral universe is long, but it bends toward... 2022  
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