AuthorTitleCitationSummaryYearKey Terms in Title or Summary
Doug Colbert, Colin Starger A BUTTERFLY IN COVID: STRUCTURAL RACISM AND BALTIMORE'S PRETRIAL LEGAL SYSTEM 82 Maryland Law Review 1 (2022) Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore's pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful... 2022  
Anita Sinha A LINEAGE OF FAMILY SEPARATION 87 Brooklyn Law Review 445 (Winter, 2022) History, as nearly no one seems to know, is not merely something to be read. And it does not refer merely, or even principally, to the past. On the contrary, the great force of history comes from the fact that we carry it within us .. This article is rooted in the belief that the articulation of shared narrative histories advances the pursuit of... 2022  
Brenner M. Fissell AGAINST CRIMINAL LAW LOCALISM 81 Maryland Law Review 1119 (2022) Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to... 2022  
Carolyn B. Ramsey AGAINST DOMESTIC VIOLENCE: PUBLIC AND PRIVATE PROSECUTION OF BATTERERS 13 California Law Review Online 45 (December, 2022) Introduction. 45 I. A Brief, Unexpected History of Domestic Violence Prosecution. 48 A. Private Prosecution. 51 B. Public Prosecution. 54 II. Addressing Domestic Violence in the Twenty-first Century. 58 A. Mass Incarceration and Calls to End the Public Prosecution of Batterers. 59 B. Restorative Justice. 62 1. Pre-conviction Diversion to... 2022  
Kerri M. Gefeke AMERICA TO ME--A PUBLIC NUISANCE REPARATIONS FRAMEWORK THROUGH THE LENS OF THE TULSA MASSACRE 55 UIC Law Review 681 (Winter 2022) I. Introduction. 682 II. Background. 686 A. What are Reparations?. 686 B. Types of Reparations Provided by the United States in the Past. 687 1. The Rhetoric of Race and Understanding United States History. 687 2. Reparations to the Sioux Nation. 688 3. Reparations to Japanese-Americans Internment Survivors. 689 4. Reparations for the Tuskegee... 2022  
Andrea A. Curcio, Alexis Martinez ARE DISCIPLINE CODE PROCEEDINGS ANOTHER EXAMPLE OF RACIAL DISPARITIES IN LEGAL EDUCATION? 22 University of Maryland Law Journal of Race, Religion, Gender and Class 1 (Spring, 2022) Addressing racism within legal education has historically focused on diversifying the faculty and student body, as well as integrating teaching about institutional and structural racism into the law school curriculum. More recently, law school faculty have begun to focus on creating an inclusive campus culture, which requires looking at all systems... 2022  
Jeffrey Z. Raines BARRED FOR LIFE: HOW STATE FELONY DISENFRANCHISEMENT LAWS BAN ELDERLY EX-CONS FROM THE VOTING BOOTH 30 Elder Law Journal 169 (2022) Our immense prison population is aging and as a result, ex-felons are being released from incarceration later and later in life. Older ex-felons have the lowest recidivism rates in the country, but despite having served their time, their reintegration into society is not an easy road to navigate. In many states, one's felony status can come with... 2022  
Tom Stanley-Becker BREAKING THE CYCLE OF HOMELESSNESS AND INCARCERATION: PRISONER REENTRY, RACIAL JUSTICE, AND FAIR CHANCE HOUSING POLICY 7 University of Pennsylvania Journal of Law & Public Affairs 257 (May, 2022) This article is the first to systematically demonstrate that fair chance housing ordinances constitute an innovative policy response to the confluence of two critical problems--mass incarceration and homelessness, both of which disproportionately affect people of color. The ordinances restrict landlords from investigating the criminal history of... 2022 Yes
Amy Fettig CAN COVID-19 TEACH US HOW TO END MASS INCARCERATION? 76 University of Miami Law Review 419 (Winter, 2022) In this essay, the author argues that federal, state and local government response to the COVID-19 epidemic in prisons and jails was largely incompetent, inhumane, and contrary to sound public health policy, resulting in preventable death and suffering for both incarcerated people and corrections staff. However, the lessons learned from these... 2022 Yes
Jonathan P. Feingold CIVIL RIGHTS CATCH-22S 43 Cardozo Law Review 1855 (June, 2022) Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground... 2022  
Renagh O'Leary COMPASSIONATE RELEASE AND DECARCERATION IN THE STATES 107 Iowa Law Review 621 (January, 2022) ABSTRACT: Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest. Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration. Compassionate release--early release from prison based on a serious or terminal medical... 2022 Yes
Matthew Clair , Amanda Woog COURTS AND THE ABOLITION MOVEMENT 110 California Law Review 1 (February, 2022) This Article theorizes and reimagines the place of courts in the contemporary struggle for the abolition of racialized punitive systems of legal control and exploitation. In the spring and summer of 2020, the killings of George Floyd, Breonna Taylor, and many other Black and Indigenous people sparked continuous protests against racist police... 2022  
Benjamin Levin CRIMINAL LAW EXCEPTIONALISM 108 Virginia Law Review 1381 (October, 2022) For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical... 2022  
Walter I. Gonçalves, Jr. CRUSHING THE SOUL OF FEDERAL PUBLIC DEFENDERS: THE PLEA BARGAINING MACHINE'S OPERATION AND WHAT TO DO ABOUT IT 49 Fordham Urban Law Journal 699 (May, 2022) Introduction. 701 I. Lay of the Land. 704 A. Explanations for the Decline of Jury Trials. 705 B. Plea Bargaining Machine's Impact on Federal Public Defenders and Their Clients. 706 i. Today's Practice Versus Practice During Gideon v. Wainright. 706 ii. Trial Rate's Decline and Public Defender Offices. 707 iii. Low Trial Rate's Impact on Assistant... 2022  
Rebecca Bratspies DECARCERATION WITH DECARBONIZATION: RENEWABLE RIKERS AND THE TRANSITION TO CLEAN POWER 13 San Diego Journal of Climate & Energy Law 1 (2021-2022) C1-2Table of Contents I. Introduction. 2 II. The Scope of the Twin Problems. 5 A. The Climate Crisis. 5 B. The Mass Incarceration Crisis. 7 III. Responding to Climate Change: Decarbonization. 12 A. New York State Climate Leadership and Community Protection Act. 12 B. New York City Climate Mobilization Act. 17 IV. Renewable Rikers: Combining... 2022 Yes
Seema Tahir Saifee DECARCERATION'S INSIDE PARTNERS 91 Fordham Law Review 53 (October, 2022) This Article examines a hidden phenomenon in criminal punishment. People in prison, during their incarceration, have made important--and sometimes extraordinary--strides toward reducing prison populations. In fact, stakeholders in many corners, from policy makers to researchers to abolitionists, have harnessed legal and conceptual strategies... 2022 Yes
Abbe Smith DEFENDING GIDEON 26 U.C. Davis Social Justice Law Review 235 (Summer, 2022) C1-2Table of Contents Introduction. 236 I. Paul Butler's Critique of Gideon. 239 II. Individual Rights May Not Be Everything, but They Are Essential to Individual Dignity. 249 III. Rights Are for the Guilty as Well as the Innocent, an Understanding That Is Essential to Ending Mass Incarceration. 258 IV. Defenders Are Allies and Supporters of the... 2022  
Khiara M. Bridges DEPLOYING DEATH 68 UCLA Law Review 1510 (February, 2022) This Article observes that if the U.S. Supreme Court overturns Roe v. Wade, people of color--specifically black people--disproportionately will be impacted by the abortion restrictions that will proliferate in the wake of the decision. In many cases, those forced to terminate unwanted pregnancies under unsafe conditions will be black; some of these... 2022  
Jamelia Morgan DISABILITY, POLICING, AND PUNISHMENT: AN INTERSECTIONAL APPROACH 75 Oklahoma Law Review 169 (Autumn, 2022) Disabled people of color are uniquely vulnerable to policing and punishment. Proponents of police reform and, more recently, police abolition note that disabled people, particularly people with psychiatric disabilities, are vulnerable to citation and arrest. Indeed, data on the high percentages of people in prisons and jails who report having a... 2022  
Jamelia Morgan DISABILITY'S FOURTH AMENDMENT 122 Columbia Law Review 489 (March, 2022) Issues relating to disability are undertheorized in the Supreme Court's Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly,... 2022  
Alexis Karteron FAMILY SEPARATION CONDITIONS 122 Columbia Law Review 649 (April, 2022) America's mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of nonincarceration mass... 2022  
Aaron Littman FREE-WORLD LAW BEHIND BARS 131 Yale Law Journal 1385 (March, 2022) What law governs American prisons and jails, and what does it matter? This Article offers new answers to both questions. To many scholars and advocates, prison law means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment. Yet, as I show, free-world regulatory law also shapes... 2022  
Charisa Smith FROM EMPATHY GAP TO REPARATIONS: AN ANALYSIS OF CAREGIVING, CRIMINALIZATION, AND FAMILY EMPOWERMENT 90 Fordham Law Review 2621 (May, 2022) America's legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples... 2022  
  From the Legal Literature 58 Criminal Law Bulletin 4 (2022) Associate Professor, Justice Studies at Montclair State University in New Jersey. Received J.D. from New York University School of Law, and Ph.D. from New York University's Institute for Law and Society. Dr. Laguardia has served as a Contributing Editor for the Criminal Law Bulletin since 2019, writing the From the Legal Literature feature for... 2022  
Marnie Lowe FRUIT OF THE RACIST TREE: A SUPER-EXCLUSIONARY RULE FOR RACIST POLICING UNDER CALIFORNIA'S RACIAL JUSTICE ACT 131 Yale Law Journal 1035 (January, 2022) This Comment explores a novel legal remedy for demonstrated racial bias or animus in police investigations presented in the recently enacted California Racial Justice Act (RJA) of 2020. The Comment contends that the California RJA, in attempting to address racism throughout the state's criminal justice system, establishes a super-exclusionary... 2022  
Avlana K. Eisenberg GETTING TO "PRISONER AS NEIGHBOR" 75 Oklahoma Law Review 69 (Autumn, 2022) C1-2Table of Contents Introduction. 69 I. Prisoner as Predator. 71 A. History. 71 B. Characteristics. 75 1. Danger. 75 2. Stasis. 75 3. Deindividuation. 76 II. Prisoner as Victim. 76 A. The Reformist Impulse. 76 B. Characteristics. 78 1. Endangered. 78 2. Stasis. 79 3. Deindividuation. 80 III. Prisoner as Neighbor. 80 A. The Principle of Return. 82... 2022  
Veryl Pow GRASSROOTS MOVEMENT LAWYERING: INSIGHTS FROM THE GEORGE FLOYD REBELLION 69 UCLA Law Review 80 (March, 2022) In the immediate aftermath of the murder of George Floyd at the hands of the Minneapolis Police, protesters engaged in acts of destruction, looting, and seizure of private and state property on a scale unseen since the assassination of Martin Luther King, Jr., in 1968. An estimated $2 billion was caused in private property damage, by far the most... 2022  
Clare Haugh HOW TO RESOLVE CAPITAL CASES THROUGH PRETRIAL MEDIATION 23 Cardozo Journal of Conflict Resolution 743 (Symposium 2022) Adam Lawson sat in shackles, cradling his head in his hands, rocking back and forth. He was waiting in the State Attorney's Office in Jacksonville, Florida, preparing to meet the Liles family, whose matriarch had been the victim of a home invasion and homicide he committed over a year earlier. Mr. Lawson was charged with capital murder, and his... 2022  
Glen M. Vogel , Robert Costello IMPLICIT BIAS IS NOT A FAIRYTALE: FROM THE CLASSROOM TO THE COURTROOM: THE CONNECTION BETWEEN RACIAL BIAS IN EARLY EDUCATION AND ITS IMPACT ON STEREOTYPES AND INTERACTIONS WITH THE CRIMINAL JUSTICE SYSTEM 20 Seattle Journal for Social Justice 695 (Spring, 2022) Even though great strides have been achieved in the area of racial equality over the last half century, the reality is that people of color, particularly Black Americans, continue to face discrimination across all facets of life and, in particular, face adverse treatment and outcomes in education and in the criminal justice system. A person of... 2022  
Dru Stevenson IN DEFENSE OF FELON-IN-POSSESSION LAWS 43 Cardozo Law Review 1573 (April, 2022) C1-2Table of Contents Introduction. 1574 I. Constitutional Challenges to the Felon-in-Possession Law. 1578 A. Unanimous Circuits and Dozens of Cert Denials. 1578 B. The Rehaif Problem and Greer. 1580 C. Continuing Attacks on the Felon-in-Possession Laws. 1585 II. The Centrality of the Felon-in-Possession Laws in Firearms Regulation Overall. 1589 A.... 2022  
Micah J. Bowden INCARCERATED DURING COVID-19: A LOOK AT NEW JERSEY 23 Rutgers Race & the Law Review 355 (2022) Finally, I've come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored,... 2022 Yes
Phyllis C. Taite INEQUALITY BY UNNATURAL SELECTION: THE IMPACT OF TAX CODE BIAS ON THE RACIAL WEALTH GAP 110 Kentucky Law Journal 639 (2021-2022) Table of Contents. 639 Introduction. 640 I. Social Darwinism. 641 II. Real Estate Investment Trusts and Mass Incarceration. 643 A. What Is a Real Estate Investment Trust?. 643 B. What Is the Relationship Between Mass Incarceration and Tax Policy?. 646 i. The Rise of Private Prisons and Detention Centers. 646 ii. Show Me the Money!. 648 C. The... 2022  
Emily Buss KIDS ARE NOT SO DIFFERENT: THE PATH FROM JUVENILE EXCEPTIONALISM TO PRISON ABOLITION 89 University of Chicago Law Review 843 (June, 2022) Inspired by the Supreme Court's embrace of developmental science in a series of Eighth Amendment cases, kids are different has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms... 2022  
Frank W. Munger, Carroll Seron LAW AND THE PERSISTENCE OF RACIAL INEQUALITY IN AMERICA 66 New York Law School Law Review 175 (2021/2022) EDITOR'S NOTE: This article was adapted from Frank W. Munger & Carroll Seron, Race, Law, and Inequality, Fifty Years After the Civil Rights Era, 13 Ann. Rev. L. & Soc. Sci. 331 (2017). In 2020, America was once again required to confront its legacy of racial inequality. Widely viewed videos of police violence against Black Americans, a resurgent... 2022  
Zachary Parrish LOCKED UP AND LOCKED DOWN IN THE LAND OF THE FREE: A LOOK AT THE UNITED STATES' PRISONS AND COVID-19'S DISPROPORTIONATE EFFECT ON BLACK AMERICANS' RIGHT TO HEALTH 37 American University International Law Review 391 (2022) I. INTRODUCTION. 393 II. BACKGROUND. 396 A. Racism in the United States: A Brief History. 396 i. Mass Incarceration. 396 ii. Systemic Racism. 399 B. COVID-19. 399 i. COVID-19's effect on Black Americans within prisons. 400 C. The International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). 405 i. Article 1:... 2022  
Jaylen Amaker , Danielle M. Lyn , Marquan Robertson MASS INCARCERATION & THE MINORITY VOTE: THE CASE FOR A FEDERAL BAN ON FELON DISENFRANCHISEMENT 36 Notre Dame Journal of Law, Ethics & Public Policy 731 (2022) Prisoners in Maine and Vermont enjoy uninterrupted voting privileges while serving time behind bars. To Foster Bates, an inmate at Maine State Prison, this privilege allows him to assess the best candidate for [his] values, [his] family's values, and the values of the country. Moreover, Bates views the right to vote behind bars as a means of... 2022 Yes
Andrew J. Arden MASS INCARCERATION, DEPRIVATION OF RIGHTS, AND RACIAL SUBORDINATION: U.S. v. GARY, THE AMERICAN GUN CONTROL NARRATIVE, AND UGLY TRUTH BEHIND 18 U.S.C. 922(G) 2 North Carolina Civil Rights Law Review 141 (Spring, 2022) Any unarmed people are slaves or are subject to slavery at any given moment . There is a world of difference between thirty million unarmed, submissive Black people and thirty million Black people armed with freedom and defense guns and the strategic methods of liberation. - Huey P. Newton, Co-Founder and Minister of Defense, Black Panther Party... 2022 Yes
John B. Meixner Jr. MODERN SENTENCING MITIGATION 116 Northwestern University Law Review 1395 (2022) Abstract--Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have... 2022  
Brandon Hasbrouck MOVEMENT CONSTITUTIONALISM 75 Oklahoma Law Review 89 (Autumn, 2022) The white supremacy at the heart of the American criminal legal system works to control Black, Brown, and poor people through mass incarceration. Poverty and incarceration act in a vicious circle, with reactionaries mounting a desperate defense against any attempt to mitigate economic exploitation or carceral violence. Ending the cycle will require... 2022  
Brandon Hasbrouck MOVEMENT JUDGES 97 New York University Law Review 631 (May, 2022) Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of... 2022  
Colie Levar Long MY "TWENTY-TWOS": MENTORING THE YOUNG MEN EMERGING COMMUNITY 46 Harbinger 39 (14-Jan-22) In this article, Colie Levar Long describes his life in prison during the COVID-19 pandemic, his burgeoning friendship with a young incarcerated person and his path to becoming a mentor for incarcerated youth. Drawing from history, social science research, and his personal experience, Long condemns the structural racism embedded in the criminal... 2022  
Stefen R. Short NEW YORK TOUGH: 18 MONTHS OF CRISIS LAWYERING TO FIGHT COVID-19 IN NEW YORK'S PRISONS 46 New York University Review of Law and Social Change 416 (2022) I. A Fast-Moving Disaster: COVID-19 in New York's Prisons. 420 II. Making the Road by Walking: COVID's First Wave and PRP's Mass Writ Strategy. 423 A. The Gift and Curse of Direct Engagement with Prison Officials. 424 B. Release Is the Only Remedy--Habeas Proceedings in Westchester and Oneida Counties. 432 C. Refining and Rebuilding--Habeas... 2022  
Andrew Manuel Crespo NO JUSTICE, NO PLEAS: SUBVERTING MASS INCARCERATION THROUGH DEFENDANT COLLECTIVE ACTION 90 Fordham Law Review 1999 (April, 2022) The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a system of pleas. The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass... 2022 Yes
Brandon Hasbrouck ON LENITY: WHAT JUSTICE GORSUCH DIDN'T SAY 108 Virginia Law Review 1289 (September, 2022) Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the... 2022  
Brandon Hasbrouck ON LENITY: WHAT JUSTICE GORSUCH DIDN'T SAY 108 Virginia Law Review Online 239 (August, 2022) Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the... 2022  
Charisa Smith OVER-PRIVILEGED: LEGAL CANNABIS, DRUG OFFENDING & THE RIGHT TO FAMILY INTEGRITY 67 South Dakota Law Review 569 (2022) Haphazard marijuana legality among U.S. jurisdictions, and our failure to confront federalism concerns, create civil rights consequences that cannot be underestimated. Although long-awaited federal legislation to legalize marijuana in Summer 2022 was backed by diverse, respected institutions and offers the strongest potential for a national... 2022  
Alexis Karteron PAROLE, VICTIM IMPACT EVIDENCE, AND RACE 87 Brooklyn Law Review 1283 (Summer, 2022) Parole is a longstanding, but often overlooked, part of the American criminal legal system that has great potential as a tool for decarceration. The American mass incarceration crisis is undeniable. With roughly two million people locked up in our prisons and jails, the United States has the dubious distinction of having the highest incarceration... 2022  
Amy F. Kimpel PAYING FOR A CLEAN RECORD 112 Journal of Criminal Law and Criminology 439 (Summer, 2022) Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and... 2022  
Fred O. Smith, Jr. POLICING MASS INCARCERATION: PRESUMED GUILTY: HOW THE SUPREME COURT EMPOWERED THE POLICE AND SUBVERTED CIVIL RIGHTS. BY ERWIN CHEMERINSKY. NEW YORK, N.Y.: LIVERIGHT PUBLISHING CORPORATION. 2021. PP. XIII, 362. $27.95 135 Harvard Law Review 1853 (May, 2022) C1-2CONTENTS Introduction. 1854 I. Mechanisms of Police Empowerment. 1860 A. The Role of Human-Scale Legal Narrative. 1861 B. Doctrinal Choices. 1863 1. Remedies. 1863 2. Constitutional Criminal Procedure. 1866 C. Solutions. 1867 II. Values. 1868 A. Violence. 1870 B. Reliability. 1871 C. Dignitary Interests. 1871 D. Inequality. 1872 III. Mass... 2022 Yes
Miguel F.P. de Figueiredo , Dane Thorley PRETRIAL DISPARITY AND THE CONSEQUENCES OF MONEY BAIL 81 Maryland Law Review 557 (2022) Catalyzed by the Black Lives Matter protests in 2020, support for criminal justice reform in the United States has become a groundswell, with reformers demanding an end to racial and socioeconomic disparities in all aspects of policing, prosecution, adjudication, and incarceration. While high-profile cases of police misconduct during arrest remain... 2022  
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