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The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.


Table of Contents

Parole Release Hearings: The Fallacy of Discretion

R. Kyle Alagood, Louisiana State University, Paul M. Hebert Law Center, Students

United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements

Kevin Bennardo, Indiana University Robert H. McKinney School of Law

Procedural Proportionality

William W. Berry, University of Mississippi School of Law

The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness

Andrea L. Roth, University of California, Berkeley - School of Law

The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data

Libor Dusek, CERGE-EI (Center for Economic Research and Graduate Education - Economics Institute)

Beyond the Right to Counsel: Increasing Notice of Collateral Consequences

Brian M. Murray, Temple University, Beasley School of Law


LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law

"Parole Release Hearings: The Fallacy of Discretion" Free Download
Thurgood Marshall School of Law Journal on Gender, Race & Justice, Vol. 5, 2015, Forthcoming

R. KYLE ALAGOOD, Louisiana State University, Paul M. Hebert Law Center, Students
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Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process. The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally. This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States.

"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements" Free Download
71 Washington and Lee Law Review Online 160 (2014)
Indiana University Robert H. McKinney School of Law Research Paper No. 2015-11

KEVIN BENNARDO, Indiana University Robert H. McKinney School of Law
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Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

"Procedural Proportionality" Free Download
George Mason Law Review, Vol. 22, No. 2, 2015

WILLIAM W. BERRY, University of Mississippi School of Law
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Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment. Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

"The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness" Free Download
California Law Review, Forthcoming

ANDREA L. ROTH, University of California, Berkeley - School of Law
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As the marijuana legalization movement lurches forward, states face a jurisprudential dilemma in addressing the burgeoning public health issue of “drugged driving.? Zero-tolerance laws targeting driving with any illegal drug in one’s system, justified under a “jurisprudence of prohibition? based on the blameworthiness of the drug itself, are no longer a good fit. Instead, states have attempted to treat marijuana like alcohol, and have imported drunk driving’s “jurisprudence of dangerousness,? by enacting “per se? driving-under-the-influence-of (DUI) marijuana laws redefining DUI as driving with a certain amount of THC, marijuana’s main psychoactive compound, in one’s blood. These laws are legitimate, we are told, because they are analogous to “per se? .08% blood-alcohol concentration (BAC) impairment laws. What lawmakers have forgotten, and what legal scholars have largely neglected, is the buried and colorful history of drunk driving’s jurisprudence of dangerousness, and the scientific framework established by the country’s first “traffic czar,? William Haddon Jr., for proving the link between specific BACs and crash risk. Under this framework – which focuses first and foremost on fatal single-car crashes and case-control studies with a randomly selected control group – the illegitimacy of the new wave of DUI marijuana laws is painfully obvious. In fact, the few single-car crash and case-control studies that have been conducted have found no relationship between THC blood levels and increased relative risk of crash. Properly understood, the history of drunk driving offers what is still the only valid scientific framework for using the criminal law as an instrument of public safety.

"The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data" Free Download
CERGE-EI Working Paper Series No. 528

LIBOR DUSEK, CERGE-EI (Center for Economic Research and Graduate Education - Economics Institute)
Email:

The paper estimates the effects of a simpler criminal procedure on case durations and the probabilities that the defendant is charged and convicted. The identification strategy exploits a policy reform in the Czech Republic as a quasi-natural experiment. The reform allowed petty offenses to be prosecuted via a simplified (fast-track) procedure but its actual implementation varied substantially across districts. The fast-track procedure reduced the average duration of the police/prosecutor phase of the criminal procedure by 27 days on average for the petty offenses. It increased the probability that the suspect is charged by 6 percentage points. The fast-track procedure released resources that could potentially be spent on prosecuting serious crimes; I therefore investigate for spillover effects. I find only weak evidence of such spillover effects on the probability that the suspect is charged and no evidence of spillover effects on other case outcomes.

"Beyond the Right to Counsel: Increasing Notice of Collateral Consequences" Free Download
University of Richmond Law Review, Forthcoming

BRIAN M. MURRAY, Temple University, Beasley School of Law
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In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities. In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel. These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction. This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel. It argues that because the criminal justice system is primarily one of pleas rather than trials, alternative solutions that involve active participation by other actors involved in the plea process are necessary. Judicial participation in the notice process, informed by the guarantees of the Fifth Amendment, should be from beginning to end, starting with arraignment and ending with the guilty plea colloquy presented to the court. This solution comports with the spirit of Missouri v. Frye and Padilla v. Kentucky, which recognize the significance of notice as essential to combating the root of the problem, albeit in the Sixth Amendment context. Likewise, prosecutors must become more mindful of the how convictions affect individuals and should contribute to improving awareness through disclosure obligations at the time of a plea offer. These efforts will cumulatively heighten legal literacy over time – amongst all players within the system – and allow for an equitable distribution of burdens when addressing this issue.

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About this eJournal

Sponsored by: Indiana University Maurer School of Law.


This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

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Directors

LAW & SOCIETY EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

JEANNINE BELL
Professor of Law, Indiana University Maurer School of Law

PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology [Emeritus] Review Section Editor - Law & Social Inquiry, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Professor of Law and Political Science, SUNY Buffalo Law School

JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law