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

Misplaced Trust: Measuring the Interference of Machine Learning in Human Decision-Making

ML decision-aid systems are increasingly common on the web, but their successful integration relies on people trusting them appropriately: they should use the system to fill in gaps in their ability, but recognize signals that the system might be incorrect. We measured how people's trust in ML recommendations differs by expertise and with more system information through a task-based study of 175 adults. We used two tasks that are difficult for humans: comparing large crowd sizes and identifying similar-looking animals. Our results provide three key insights: (1) People trust incorrect ML recommendations for tasks that they perform correctly the majority of the time, even if they have high prior knowledge about ML or are given information indicating the system is not confident in its prediction; (2) Four different types of system information all increased people's trust in recommendations; and (3) Math and logic skills may be as important as ML for decision-makers working with ML recommendations.Comment: 10 page

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

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

Beyond Problem-Solving Courts

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming. Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again. Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often fare worse than they would have otherwise. In this Article, I argue that it is time to stop trying to perfect problem-solving courts and to instead begin to close this door to the criminal courthouse altogether. This will require some radical honesty about what these specialized courts do—and do not do— and the ways this punishment model creates unintended harms. But this reckoning is also an opportunity to revive the experimentalist spirit that animated the earliest problem-solving courts and inspired judges to do things differently in the hopes of building a different future. This Article ultimately is a call to envision new ways to provide services and opportunities that could help people thrive, and an invitation to open doors to new paths that avoid the system altogether. In short, I argue that it is time to move beyond problem-solving courts

Punishing Gender

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been renewed interest in reforms that reduce the harms punishment inflicts on women. These gender-responsive reforms aim to adapt traditional punishment practices that, proponents claim, were designed for men. The push to change how we punish based on gender, while perhaps well intentioned, is misguided. As abolition feminist principles reveal, these gender-responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state. This Article catalogs the ways in that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives. Then, it provides an abolition feminist critique of how we punish gender and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all

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.

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