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Abstract:
To date, restorative justice the United States has operated mainly at the fringes of the criminal justice system, with small programs handling a relatively small number of juvenile cases and cases involving minor offenses. In contrast, in many countries restorative justice is now fully in the mainstream. This paper considers the prospects for widespread adoption of restorative justice principles and a substantial restructuring of the criminal justice system in the United States to accommodate those principles.

As a background to the issue of the public's receptivity to restorative justice principles and policies, the paper first reviews the punitive policies of the 1980s and 1990s, and the dramatic declines in American crime rates during the last decade. The sharply declining crime rate might mean the time is right for a switch from punitive to restorative criminal justice policies, and there is some evidence that public anxiety about crime is starting to decrease, and that support for punitive policies has declined. There are, however, several significant barriers to the adoption of restorative justice principles. The paper explores 1) the market driven media, which has an incentive to stress crime stories and frames them in a fashion that supports punitive responses and cues racial attitudes, 2) a political system that has rewarded the candidates and parties that have played the "crime card," and 3) a recent emphasis on sentencing principles that are difficult to square with restorative justice practices.

Finally, the article considers new factors in the equation that may be capable or producing shifts in public opinion despite the barriers noted above, opening a window of opportunity for restorative justice programs. The most significant of these factors are the financial pressures on state budgets, which has led numerous state legislatures to reconsider their sentencing policies.

Abstract:
Shortly after the September 11 attacks, Congress passed an anti-terrorism bill, the "USA Patriot Act." Among other provisions, the Act relaxes the historic rules of grand jury secrecy to permit, for the first time, disclosures of grand jury material without a court order for purposes unrelated to the enforcement of the federal criminal law. This article provides a brief history of the scope of the grand jury's authority and the rule of grand jury secrecy, including a discussion of the traditional role of the courts in limiting access to grand jury materials. Prior to the USA Patriot Act, no one other than another federal grand jury, government attorneys, or personnel assisting them in enforcing the federal criminal law was permitted access to grand jury materials without first obtaining a court order on a showing of a particularized need for the information. In a marked departure from this longstanding rule of grand jury secrecy, the Act permits disclosure of grand jury materials, without a court order, to a long list of federal agencies with duties unrelated to law enforcement. Although the disclosed grand jury materials must relate to foreign intelligence or counterintelligence, those terms are defined with considerable breadth in the Act.

This article examines the potential impact of these changes on the interests protected by grand jury secrecy, assesses the need for disclosure of these materials, and considers the courts' role in supervising disclosure of these grand jury materials. It concludes that the potential for harm to the interests furthered by grand jury secrecy may be outweighed in some circumstances by the need for disclosure of the grand jury information. It points out, however, that the Act could have the unintended consequence of expanding the use of grand juries beyond their traditional purpose of federal criminal law enforcement, a result that would be problematic in light of the broad investigative powers possessed by grand juries and the relatively limited rights of grand jury witnesses and targets. The Act likewise could increase the risk that national defense and security agencies may become inappropriately involved in domestic affairs. The Article recommends an amendment to the grand jury secrecy rule to require judicial supervision of disclosures under the Act as a step toward preventing some of these potential harms while still permitting the disclosure of information when necessary to protect the national interest and national security.

Grand jury, terrorism

Abstract:
This article explores some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts.

Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement.

Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.

Abstract:
Although corporate criminal liability has been recognized in the United States for nearly a century, contemporary academic commentators have questioned its legitimacy and argued that it is inferior to its alternatives: civil liability for the corporation and/or criminal liability for individual corporate agents. Other academic critics have attacked the present definitions of corporate criminal liability. In other words, although corporate criminal liability has also had its academic champions, it has been under attack in the United States. The situation in Europe poses a sharp contrast.

Abstract:
This paper explores how legislative attempts to crack down on gun violence have affected the behavior of courts and prosecutors in the federal system, putting pressure on the boundary between federal and state law, as well as the boundaries of the elements defining various federal offenses.

Legislative efforts to expand the boundaries of federal criminal jurisdiction to deter and punish gun violence brought Congress to the threshold of a major shift in the federal/state boundary, as Congress came within a hair's breadth of making every crime involving a firearm that had crossed state lines a federal offense. At that point, the Supreme Court responded with its first decision in half a century limiting congressional power under the Commerce Clause, United States v. Lopez. Although the Court also has a broader federalism agenda, this paper argues that Lopez and United States v. Morrison were motivated, to a significant degree, by the Court's institutional concerns about a possible flood of federal gun prosecutions. From the viewpoint of positive political theory, Lopez and Morrison can be understood as the Supreme Court's effort to reshape Commerce Clause doctrine to protect the traditional role and status of the federal courts, and to prevent their transformation into police courts.

At the administrative level, gun-related penalties have generated pressure on a different boundary, as federal prosecutors sought expansive interpretations of the elements defining the most commonly prosecuted federal firearm offense, 18 U.S.C. ? 924(c). Section 924(c) provides for super enhanced penalties that are severe, mandatory, and consecutive to all other penalties under federal and state law. This section of the paper explores the question whether prosecutors--like counsel for private plaintiffs in civil RICO treble damage cases-- press for extreme interpretations of the Section 924(c) and seek to bring many marginal cases within its ambit. A review of the litigation under Section 924(c) does seem to reflect a prosecutorial response to the incentive created by super enhanced penalties, including aggressive pursuit of extreme interpretations of various elements of the statute. On the other hand, a review of prosecutorial practices also reveals apparently conflicting trends: federal prosecutors bargain away or decline to bring charges under the enhanced penalties in the majority of cases. Ironically, though the penalties established in Section 924(c) are mandatory, they are imposed in less than one half of the federal cases in which the facts appear to fall within the ambit of 924(c). Thus the effect of enhancing the penalties applicable to gun related crime has been to greatly enlarge the scope of the discretion exercised by federal prosecutors, and the magnitude of the consequences controlled by their discretion, without the development of any additional checks against the abuse of this enhanced discretion.

Abstract:
This paper seeks to explain the prominence of crime as a political issue and the prevailing public support for harsher criminal sanctions. In Part I, I review the history of crime and the politics of crime in the United States, arguing that the coincidence of an increase in the post-war crime rates at a time of antiwar and civil rights disturbances set the stage for opportunistic political behavior as the Republican Party used the crime issue to gain political strength in the South where the Democratic party's support of civil rights legislation left it vulnerable. In Parts II and III I review public opinion on crime, the media's treatment of crime and violence, and the literature of cognitive psychology. Although no definitive proof of cause and effect has been established, a correlation has been found between high consumption of violent programming and increased fear of crime, and there is evidence that the news media's focus on crime may shape political views and/or perform an agenda- setting function. I draw from the well-developed literature about the conflict between public and expert views on risk perception, exploring "rival rationalities" and "cognitive error" theories as a means of understanding the public's views on criminal justice issues.