The Criminalization of Title IX

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses on non-punitive prevention, seeks to identify and change institutional norms and practices that contribute to sexual violence, and provides victims with access to accountability mechanisms beyond traditional punishment

Evidence Rules for Decarceration

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration.While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial. This Essay examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state. It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals – without regard for the truth, fairness, or justice of the outcome. In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.

Abolishing the Evidence-Based Paradigm

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. This Article challenges the paradigm’s core claims. It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter. In other words, the evidence-based paradigm is political, and it does have an agenda. And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens – rather than challenges – the existing system. The Article argues that, if left unchallenged, the evidencebased paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity. Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision

Punishing Risk

Actuarial recidivism risk assessments-statistical predictions of the likelihood of future criminal behavior-drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration. Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing. In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. Nevertheless, that is precisely how those who endorse actuarial sentencing-including the American Law Institute in the recently revised Model Penal Code for Sentencing-suggest they should be used. Actuarial sentencing is, in short, an unintended, off-label application of actuarial risk information. This Article reexamines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration and it may do so for reasons that undermine the fairness and integrity of the criminal justice system

The Problem of Problem-Solving Courts

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist? This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement. It contends problem-solving courts do effectively address a problem — it is just not the one we think. It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power. Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight. Together, these new insights help explain why the problem-solving court model endures. They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform or transform the system

Psychophysiology of respiratory disease : clinical considerations for the advanced practice nurse

The purpose of this article is to describe the psychophysiology of dyspnea in chronic obstructive pulmonary disease (COPD), identify the unique impact of respiratory disease on the female patient, and discuss the relationship of anxiety and depression in disease manifestation. Current COPD assessment and treatment guidelines published by the United States Department of Health and Human Services, the World Health Organization as well as the National Institute for Health and Care Experience (NICE) will be presented along with implications for the Advanced Practice Nurse (APN). Practitioners treat COPD patients with advanced physiological complications along with psychological comorbidities that worsen the disease perception and progression. Therefore, a recommendation will be made to integrate assessment and evaluation of psychological comorbidities in COPD patients, with particular consideration given to the female patient. Utilizing a holistic, int egrated treatment plan will serve to enhance patient care, alleviate disease burden and impact overall quality of life in the patient with COPD.peer-reviewe

The Criminalization of Title IX

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses on non-punitive prevention, seeks to identify and change institutional norms and practices that contribute to sexual violence, and provides victims with access to accountability mechanisms beyond traditional punishment

Clemency and the Administration of Hope

In 2014, President Obama announced his intention to ‘‘restor[e] fundamental ideals of justice and fairness’’ to the criminal justice system by exercising his executive clemency power to commute sentences of those who had ‘‘already served their time and paid their debt to society.’’ Soon thereafter, the Department of Justice (DOJ) specified six criteria it would use to prioritize applications. The primary targets of these criteria were the casualties of the war on drugs: people sentenced to draconian sentences for nonviolent drug offenses, some of which involved less than a handful of narcotics. Most of these individuals had exhausted any available appeals years ago and resigned themselves to spending the majority or all of their lives in prison. With his 2014 announcement, President Obama unsettled their expectations and revived their long abandoned hope that they would leave prison while their parents were still alive, in time to see their children graduate from high school or college, or, as many conveyed, in anything other than a box

The Evidentiary Rules of Engagement in the War against Domestic Violence

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to no-drop prosecution policies, the system\u27s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime. This Article reveals that this presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The Article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by both reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support prosecution