Can Prosecutors End Mass Incarceration?

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon

Defending Progressive Prosecution: A Review of Charged by Emily Bazelon

Progressive prosecutors are taking over District Attorney\u27s Offices across the nation with a mandate to reform the criminal Justice system from the inside. Emily Bazelon\u27s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal Justice. This Essay highlights the importance of Charged to modern criminal justice debates and leverages its concrete framing to offer a generally applicable theory of prosecutor-driven criminal justice reform. The theory seeks to reconcile reformers\u27 newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power. It also offers the potential to broaden the reform movement\u27s appeal beyond progressive jurisdictions

Janet Halley and the Art of Status Quo Maintenance

Over the past few years, Janet Halley emerged as one of the most avid critics of campus rape feminist activists, activists who push for the reformulation of university investigative rules to shift the burden of proof from the accuser to the accused. Halley contends that Title IX policies, embedded with affirmative consent, are not only procedurally unsound, but bad for boys, bad for sex, and bad for feminism, charging its agenda with “radical feminism” influences. Halley’s stance on campus rape is consistent with her long-held “queer theory” and its anti-feminist deregulatory drive. In this article, I argue that Halley’s “queer theory,” which she developed by polemically critiquing Catharine Mackinnon’s work, in an attempt to extol “sex positivism” in legal academia with the dignity of “fancy” theory, in effect stands Mackinnon on her head. By inverting Mackinnon’s gender/ sex constructions, Halley’s theory fronts as an idealist proposition indicting feminism with the invention of sexual injury and inspiring women to manipulate innocuous facts into scandalous protest. Flipping Mackinnon’s equality approach when it comes to legal rules takes Halley to the right of “consent” where Mackinnon had gone to its “left.” By mirroring Mackinnon’s critique of “consent,” except from the right, Halley’s theorizing echoes a sexual libertarian agenda without/before feminism. It defends male sexual entitlement avant liberal feminism. Ideologically, such theoretic formulations, along with the bundle of rules they advocate for, are designed to keep pressure on ruling liberal feminism from departing in its understanding of sex from the “pathology” model whereby all men are good except for those who are “pathologically” violent (classical liberalism) in the direction of understanding sexual entitlement as part of the social construction of maleness. By clamoring from the right of liberal feminism, mainstream liberal feminism is kept in check. In order to explain the various elements of Halley’s theories on gender/sex and expose their underlying pre-feminist “classical liberal” orientation, I position her comparatively within the gender/sex theories of the non-liberal academic left: Mackinnon (her antagonist), Duncan Kennedy (her ally), and Judith Butler (her theoretical homebody). I analyze the way these theorists used the theoretical traditions of Marxism, post-modernism, and post-structuralism to posit a relationship between gender and sex: sex is gender simpliciter (Mackinnon), gender is sex simpliciter (Halley), and the split difference between gender and sex (Kennedy). This exercise illuminates the doctrinal approaches of each theory, be it to the left or right of consent. I conclude the article with a succinct critique of Halley’s theoretic excursions and argue Halley is guilty of five themes of “misrecognition:” (A) theoretical, oscillating between an antagonism to the very idea of sexual injury and proposing a neutral proceduralist approach to identifying it; (B) political, targeting radical feminism with her critique while smashing liberal feminism on the way; (C) sociological, reading women’s sexual injury through the eyes of an “uninjurable” promiscuous gay man advocating a radical sexual ideology; (D) ideological, attempting to ally her sexual libertarianism with the left when the ideological universe it travels is “classical liberalism,” definitively, the left’s most pronounced critic; and (E )historical, advocating a “sex positive” agenda in radically sex positivist times

Keep Tinkering: The Optimist and the Death Penalty

When it comes to capital punishment, it may make sense to be a little bit defeatist. Like abortion, the death penalty is a topic about which you have to presume that you are never going to change anyone else’s mind. Whether the other person views it as a necessary part of the justice system or as a moral outrage, odds of changing the other person’s mind through reasoned discourse are slim

Twelve Angry Men: A Twenty-First Century Reflection of Race, Art, and Incarceration

Twelve Angry Men: A Twenty-First Century Reflection of Race, Art and Incarceration is a Comparative and Digital Humanities Honors Thesis concentrating on Africana Studies, theatre, sociology and legal studies to demonstrate the importance of investing in incarcerated communities through theatre and education. In Chapter I, I critique the loss of identity attached to incarceration, and introduce the foundation for Black bodies individuals being discriminated against in the prosecution system. I analyze the “Punishment vs Progress” mentality, and introduce current educational programs in place in prisons. I elaborate on the details of our production, as well as the makeup of actors. An inside student closes the chapter with remarks of his own personal experience as an actor in the production. In Chapter II, I dissect the “cast list” of the criminal prosecution system (the prosecutor, defense attorney, and jury) and analyze the ways in which these roles coexist. I critique the “white knight, win-at-all-costs” mentality of prosecution, and offer the history of the criminal prosecution system to reinforce my sentiment that an all-white, anti-Black force of “justice” can never be just. In Chapter III, I analyze the data of incarceration rates, Black incarceration, and the discrimination of conviction. Bail money is explained and criticized, and the costs of mass incarceration are highlighted. Solutions to mass incarceration are explained, and they include the elimination of prosecutor “tunnel vision” and eliminating the prosecutor attitudes of the previous chapter. The chapter concludes with experiences from an inside student. In Chapter IV, I disclose the costs of a Broadway production and the compensation of artists. Then, the anti-Blackness of compensation and opportunity is critiqued. Black theatre, enterpainment, and trauma are all analyzed, and the experience of Hamilton’s Daniel James Belnavis is analyzed. The chapter highlights the exclusion of actors based on race, gender, and sexuality and compares Hamilton to Twelve Angry Men. The chapter concludes with noting the effects of casting and the intentional or unintentional meaning of representation on stage. In Chapter V, I conclude that change cannot happen without definitive action. Reform prosecution in conjunction with education and theatre programs will lower recidivism rates and better society

Progressive Prosecution or Zealous Public Defense? The Choice for Law Students Concerned About Our Flawed Criminal Legal System

This Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry Krasner’s road show to recruit law students and young lawyers, and then proceeds as follows: First, this Article makes the case for progressive prosecution; then, it makes the case for zealous indigent defense; then, it identifies the obstacles and challenges for both kinds of lawyers and offers a brief comment on prosecutor and defender “personalities;” finally, it offers thoughts on who, in the end, has more power to make meaningful change

The Compromises Progressive Prosecutors Must Make: Three Case Studies

Elected prosecutors in the United States have facilitated mass incarceration, especially since 1994. In response, activists have helped to elect progressive prosecutors at the local level. This thesis examines whether prosecutors can achieve progressive goals, including increasing the fairness of the criminal justice process, prosecuting police abuse, and reducing incarceration. Based on three case studies, I find that prosecutors can reduce incarceration and increase the fairness of the criminal justice process, but that they currently face significant constraints in prosecuting police abuse. A prosecutor’s capacity to collaborate with more conservative agents is the most crucial factor for success and depends on not prosecuting police abuse, limiting the extent to which they reduce prosecutions, and, to a lesser degree, limiting how far they go toward promoting a fairer criminal process

WHEN THE STORY IS TOO GOOD TO BE TRUE: A LAWYER\u27S ROLE IN RESISTING THE LURE OF NARRATIVE

Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This Article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences