Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass Incarceration

Three widely discussed explanations of the punitive carceral state are racism, harsh drug laws, and prosecutorial overreach. These three narratives, however, only partially explain how our correctional system expanded to its current overcrowded state. Neglected in our discussion of mass incarceration is our largely forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, is an important part of our history of imprisonment, one that has shaped key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration

Reports of Batson\u27s Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces a Normative Framework of Legal Ethics

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination norm as part of the norm of professionalization, Batson both improves the actions of lawyer and judges during jury selection while at the same time constructing and compelling an aspirational code of ethics. This article has several goals. First, I propose a legal ethics theory of Batson, as the Batson doctrine is a vehicle through which the legal system achieves a major aspiration of professionally responsible behavior. Second, I provide a measured look at the anxiety surrounding the Batson procedure and the peremptory challenge, starting with its most recent history, and explain how my theory of legal ethics can resolve many of the Batson grievances. Finally, I will examine why Batson is so important and look at some of the additional implications of my legal ethics approach. I conclude that Batson’s framework of legal ethics assists in the goal of furthering the moral integrity of the legal profession

The Plea Jury

This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication. My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system. In a plea jury, a lay panel of citizens would listen to the defendant\u27s allocution and determine the acceptability of the plea and sentence, reinvigorating the community\u27s right to determine punishment for offenders. My goal is to return the Sixth Amendment community-jury right to its proper place by envisioning its integration into the guilty plea, based on recent Supreme Court decisions, punishment theory, criminal justice policy, and modern procedural concerns. In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty-plea procedure

Cashing in on Convicts: Privatization, Punishment, and the People

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability. This Article shows what is lost when private, for-profit entities are allowed to take on the traditional community function of imposing and regulating punishment. By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system

Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment

In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, lies the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law. This Article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those of convicted offenders in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a crosssection of the offender’s community adjudicates his crime and finds him guilty. This Article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance, and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community

The Plea Jury

This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication. My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system. In a plea jury, a lay panel of citizens would listen to the defendant\u27s allocution and determine the acceptability of the plea and sentence, reinvigorating the community\u27s right to determine punishment for offenders. My goal is to return the Sixth Amendment community-jury right to its proper place by envisioning its integration into the guilty plea, based on recent Supreme Court decisions, punishment theory, criminal justice policy, and modern procedural concerns. In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty-plea procedure

Local Democracy, Community Adjudication, and Criminal Justice

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and return us to fundamental criminal justice ideals