Volume 87, Number 3 (March, 2014)
Accuracy in Sentencing
Article by Brandon L. Garrett
A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice”—that is, a claim of innocence. The Supreme Court’s miscarriage of justice standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cog...
Criminal Law at the Crossroads: Turn to Accuracy
Article by Dan Simon
It is customary at the USC Gould School of Law to commemorate the publication of books authored by members of the faculty. A while before the publication of In Doubt: The Psychology of Criminal Justice, Dean Robert Rasmussen summoned me to discuss a way to commemorate its release. The conversation quickly converged on the idea that rather than hold an event to celebrate the publication of the book, we should seize the opportunity to hold an earnest discussion about the core issues raised in it:...
Meanings and Measures of Recidivism
Article by Robert Weisberg
What causes crime and why crime rates vary over time and place—these are vast questions that dominate the careers of criminologists. The related question of what we can expect government agencies to do about crime—that is, what we can hold government responsible for—occupies much of our civic discourse. My subject here is deceptively more modest: how we identify and address one major problem that government agencies, most obviously criminal justice agencies are supposed to resolve: the elusive p...
Lessons for Law Reform from the American Experiment with Capital Punishment
Article by Carol S. Steiker & Jordan M. Steiker
The American death penalty is often described as anomalous, distinctive, or exceptional in the sense that at present, in the early years of the twenty-first century, the United States is the sole Western democracy that retains the practice of capital punishment. However, a second aspect of American exceptionalism in this context has largely escaped notice. The United States has chosen not merely to retain the death penalty while its peer nations have abolished it; rather, the United States has e...
You Can Touch, But You Can't Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws
Note by MacKenzie Smith
Thirty-two-year-old Eric Rinehart was a former police officer and member of the Indiana National Guard. He was going through his second divorce, he had custody of his seven-year-old son, and he had no criminal record. During this time, perhaps against his better judgment, he began two sexual relationships with young women, aged sixteen and seventeen. Although the young women were much younger in age, both of Rinehart’s sexual relationships were consensual and entirely legal. Under Indiana state...
Lessons from Inquisitorialism
Article by Christopher Slobogin
As implemented in the United States, the adversarial system is a significant cause of wrongful convictions, wrongful acquittals, and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime can reduce these erroneous results. This Article proposes that the American trial process incorporate three inquisitorial mechanisms—judicial control over the adjudication process, nonadversarial treatment of experts, and required unsworn testimony by the defendant—and defends the...
Framing the Prosecution
Article by Daniel Richman
The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play—the one in which defendants get the tools to poke holes i...
The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System
Article by Erin Murphy
The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” tech...
Revisiting the T.J. Hooper: Stating What is Constitutionally Required of Defense Attorneys Under the Strickland Evaluation of Attorney Performance
Note by Lauren McGrory Johnson
The story has become all too familiar. Facing felony charges, an indigent defendant is appointed a public defender to represent him. Working under a crushing caseload of 500 felonies per year, the public defender has around an hour to dispose of the case. He meets with the defendant once, quickly advises him to accept the plea deal offered by the prosecutor, and moves on to the next defendant. No investigation; no interviewing potential witnesses—just take the plea. The case described above w...
Correcting Criminal Justice Through Collective Experience Rigorously Examined
Article by James S. Liebman & David Mattern
Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made...
Searching for Injustice: The Challenge of Postconviction Discovery, Investigation, and Litigation
Article by Laurie L. Levenson
Criminal law is at a crossroad. With 2.3 million Americans in prison today, one of the biggest challenges for the criminal justice system is dealing with postconviction claims by prisoners. Most of the focus of scholarship for criminal law is on preconviction issues. Many of the participants in the criminal justice system, including judges, prosecutors, and defense lawyers, view a criminal case as “final” once the defendant has been sentenced. Yet, it is increasingly clear that the trial, senten...
Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments
Article by Donald A. Dripps
During the 1960s, the Warren Court’s “criminal procedure revolution” imposed constitutional limits on criminal procedure in the states, limits that persist in some form to this day. During the 1980s, criminal justice in the United States took a “punitive turn” that resulted in the largest per capita prison population on the planet. In this Article, I consider the claim, advanced by the late Professor William J. Stuntz, that a sinister causal relationship inhabits this striking paradox. Pro...
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