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.
LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law
"Ministers of Justice and Mass Incarceration"
Georgetown Journal of Legal Ethics, Vol. 30, No. 301, 2017
LISSA GRIFFIN, Pace University School of Law
ELLEN YAROSHEFSKY, Hofstra University - Maurice A. Deane School of Law
Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of â€œmass incarcerationâ€? is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a â€œlaw and orderâ€? perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped.
Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor. It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence. Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population. That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions. If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?
This Article examines the recognized role of the prosecutor as a â€œminister of justice,â€? and makes a range of suggested changes to the prosecution function. These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.
"Housing Vouchers, Income Shocks, and Crime: Evidence from a Lottery"
JILLIAN B. CARR, Purdue University - Krannert School of Management
VIJETHA KOPPA, Stephen F. Austin State University - Department of Economics and Finance
The Housing Choice Voucher Program (Section 8) is the largest federal housing assistance program; it provides in-kind transfers in the form of rent vouchers to low-income populations. This paper examines the effect of such voucher receipt on criminal activity. To overcome bias due to selection into the program, we exploit the exogenous variation in lottery-assigned wait-list positions in order to identify the causal effects of the vouchers. Using administrative arrest records, we find voucher receipt has no effect on the likelihood of all arrests, and arrests for drug and financially motivated crimes, but increases the probability of violent crime arrests.
"Plea Agreements As Constitutional Contracts"
COLIN MILLER, University of South Carolina School of Law
In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennanâ€™s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.
This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.
This Article then argues that incorporation of one of these protectionsâ€”the implied covenant of good faith and fair dealingâ€”would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:
(1) substantial assistance motions;
(2) Brady disclosures; and
(3) prosecutorial presentation of sentencing recommendations.
"The Illegal Use of Force (Other Inhumane Act) As a Crime Against Humanity: An Assessment of the Case for a New Crime at the International Criminal Court"
Leila Nadya Sadat (ed.), Seeking Accountability for the Unlawful Use of Force (Cambridge, Cambridge University Press, 2017) (Forthcoming)
MANUEL J. VENTURA, The Peace and Justice Initiative, Special Tribunal for Lebanon, Western Sydney University, School of Law
Ben Ferencz, the last surviving Nuremberg-era prosecutor, has recently proposed that the illegal use of force should be prosecuted not as aggression as defined at the International Criminal Court (ICC), but instead as a crime against humanity, namely, as an other inhumane act. In his view, any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians, should be subject to punishment for his or her individual criminal responsibility in the perpetration of a crime against humanity. After identifying the various gaps and loopholes associated with the ICC's aggression definition and its associated jurisdictional provisions as agreed to in Kampala, Uganda in 2010 â€“ which may justify Ferenczâ€™s alternative â€“ this Chapter subjects a slightly modified version of his proposal to scrutiny. This is done in accordance with international criminal law on other inhumane acts as a crime against humanity, and in particular, in light of the ICCâ€™s existing crimes against humanity jurisprudence. It concludes that although, in theory, a case can be made along the lines proposed by Ferencz â€“ and thus potentially opening the door to the recognition of a â€˜newâ€™ crime that would be both wider and narrower in scope than aggression â€“ there exist policy and legal impediments that would likely make such an option unpalatable to ICC prosecutors and judges.
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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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
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
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
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology
Professor of Law and Political Science, SUNY Buffalo Law School
JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law