Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative institutions or approaches to realize social order maintenance goals. In particular, these reformist efforts continue to rely on conventional criminal regulatory approaches to a wide array of social concerns, with all of their associated violence: on criminalization, policing, arrest, prosecution, incarceration, probation, and parole. Thus, even as these reformist approaches may offer substantial benefits, they remain wed to institutions that perpetrate criminal law’s violence and to limited temporal and imaginative horizons. By contrast, this essay explores a series of criminal law reform alternatives that offer more fundamental substitutes for criminal law administration. More specifically, this essay focuses on the possibilities of alternatives to criminal case processing that substitute for the order-maintaining functions currently attempted through criminal law enforcement. These alternatives hold the potential to draw into service separate institutions and mechanisms from those typically associated with criminal law administration. Further, these alternatives enlist on more equal footing and invite feedback and input from persons subject to criminal law enforcement. Importantly, this latter subset of reform alternatives is decidedly unfinished, partial, in process. I will argue that this unfinished quality ought not to be denied as an embarrassment or flaw, but instead should be embraced as a source of critical strength and possibility. In this dimension, this essay is a preliminary call for more attention on the part of legal scholars and criminal law reform advocates to unfinished partial substitutes for the order-maintaining work performed by criminal law administration — a call to attend further to as yet incomplete reformist alternatives that may portend less violent and more self-determined ways of achieving some measure of social order and collective peace. I begin to develop this argument by drawing, in particular, on the work of the Norwegian social theorist and prison abolitionist Thomas Mathiesen

Saffron Cod (Eleginus gracilis) in North Pacific Archaeology

Saffron cod (Eleginus gracilis) is a marine species often found in shallow, brackish water in the Bering Sea, although it can occur as far southeast as Sitka, Alaska. Recently, we identified saffron cod remains in two ca. 500-year-old Afognak Island midden assemblages from the Kodiak Archipelago. We developed regression formulae to relate bone measurements to total length using thirty-five modern saffron cod specimens. The archaeological saffron cod remains appear to be from mature adults, measuring 22–45 cm in total length, and likely caught from shore during spawning. Saffron cod may have been an important winter resource for Alutiiq people living near the mouths of freshwater rivers. It is also possible that saffron cod were caught in late summer or fall during salmon fishing

Families Belong Together: The Path to Family Sanctity in Public Housing

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union with another person. However, drawling from Justice Douglas’ “penumbras principle” from Griswold v. Connecticut, this Note argues that interpreting the right to marriage to include its peripheral rights, like cohabitating, is the more principled approach. Using this approach, public housing authorities as government entities must prove that policies that disqualify ex-felons and arrestees from residing on their premises—even when their spouses are current residents—are necessary to further a compelling interest and narrowly tailored to be constitutional. Recognizing that a penumbra approach to interpreting the right to marriage would nonetheless leave non-marital families subject to broad governmental interference, this Note concludes by reasoning that non-marital families would have a strong argument that the differential treatment violates the Equal Protection Clause

Risky Business: Critiquing Pennsylvania’s Actuarial Risk Assessment in Sentencing

The use of statistical risk assessment tools is growing in many different areas of the criminal justice field.  This Note critiques this growing trend towards using risk assessment tools during the sentencing phase.  Part II of this Note will survey the differing types of risk assessment tools used across the United States to track the development of risk under the assessment protocol standards of the criminal justice systems.  Part III will review the current criticisms on actuarial risk assessment.  Part IV will outline the proposed risk assessment tool Pennsylvania is currently developing.  Finally, Part V will weigh Pennsylvania’s model against the criticisms of actuarial risk assessment discussed in Part II