Announcements

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

Constructing Recidivism Risk for Sentencing

Jessica Eaglin, Indiana University Maurer School of Law

Inventing Drugs: A Genealogy of a Regulatory Concept

Toby Seddon, University of Manchester - School of Law

Taking Back Juvenile Confessions

Kevin Lapp, Loyola Law School Los Angeles

Post-Ferguson Social Engineering: Problem-Solving Justice or Just Posturing?

Mae C. Quinn, MacArthur Justice Center at St. Louis


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

"Constructing Recidivism Risk for Sentencing" 

JESSICA EAGLIN, Indiana University Maurer School of Law
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“Evidence-based sentencing� informs criminal sentencing determinations by using statistically derived risk assessment tools to predict a defendant’s likelihood of committing future crimes. By relying on data-driven risk assessment tools, this practice applies Big Data techniques to sentencing. This Article challenges the perception that such risk assessment tools neutrally classify a defendant’s recidivism risk. Scientists who construct such tools necessarily make normative choices and embed them in the tools’ design. Such choices – including how the scientists formulate the data set, how they define “recidivism� and which factors they select to create a risk tool’s underlying algorithm – all require subjective judgment calls and can introduce inadvertent bias.

Rendered invisible once tools have been created, decisions about how to select, process and analyze data amount to distinct, if unintended, sentencing policy choices when judges use such risk assessment tools through evidence-based sentencing. That data scientists make such calls present three unique concerns. First, tool creators face diverging interests when exercising their discretion. Data scientists tend to make design choices based on data robustness and tool accuracy, but such interests can conflict with or even contradict sentencing policy. Second, tool creators are ill-equipped to resolve existing racial disparities in the criminal justice system, but their design choices potentially replicate and exacerbate these disparities significantly. Finally, tool creators have little incentive to disclose the policy and data choices made, leading to misuse of and misrepresentation about the value of their seemingly objective and scientifically derived information.

A partial solution lies in requiring more transparency about the recidivism risk tools' design. Additionally, those with criminal justice expertise must be included in the tool design process. This Article calls for disclosure of data processing decisions and risk assessment tool assumptions, and review by trained governmental entities to translate the design choices for consumption by judges and probation officers in states that permit evidence-based sentencing. Recognizing the intricate and problematic connection between Big Data and evidence-based sentencing, this Article concludes by considering obstacles to even this modest call for oversight in such a new and sometimes inaccessible area of criminal justice reform.

"Inventing Drugs: A Genealogy of a Regulatory Concept" Fee Download
Journal of Law and Society, Vol. 43, Issue 3, pp. 393-415, 2016

TOBY SEDDON, University of Manchester - School of Law
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The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty�first century. The central concept of a ‘drug’ remains under�theorized and largely neglected by critical socio�legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal�regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.

"Taking Back Juvenile Confessions" Free Download
UCLA Law Review, Forthcoming

KEVIN LAPP, Loyola Law School Los Angeles
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The limited capacity of juveniles to make good decisions on their own — based on centuries of common sense and empirically supported in recent decades by abundant scientific research — informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. This underenforces their privilege against self-incrimination, disrespects their dignity, and raises the risk of wrongful convictions. This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine and permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles. The justifications, advantages, and drawbacks to such a doctrinal shift are explored.

"Post-Ferguson Social Engineering: Problem-Solving Justice or Just Posturing?" Free Download
Howard Law Journal, 2016 Vol. 59 No. 3

MAE C. QUINN, MacArthur Justice Center at St. Louis
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This essay - published on the second anniversary of Mike Brown's shooting death in Ferguson and one year after the United States Department of Justice issued its shocking findings regarding St. Louis County’s juvenile court system - urges skepticism regarding claims of ongoing system reform in Missouri.

While there is some good work being done by committed reformers, it interrogates the intentions of emerging "change agents" who now purport to care about racial bias, youth justice, and criminal law – those who for years merely stepped over widespread injustices in their own community. It further challenges the legal theories such individuals and institutions now proffer as the answer, "feel good" fixes which fail to fully take account of ongoing systemic racism or take to task the many bad actors still in positions of power.

In the end it cautions against adoption of surface-level solutions like "problem solving courts." Such venues – which largely require relinquishment of legal rights and protections – simply paper over real problems. With their focus on "treating" the alleged "offender," these courts do nothing to take on race bias in policing or treating the underlying sicknesses of our justice system. Instead such venues simply perpetuate problematic policing and prosecution practices that have resulted in second-class citizenship for persons of color in this country.

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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.

Editor: Joseph L. Hoffmann, Indiana University

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To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

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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