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Jails, Sheriffs, and Carceral Policymaking
Get PDFThe machinery of mass incarceration in America is huge, intricate, and destructive. To understand it and to tame it, scholars and activists look for its levers of power—where are they, who holds them, and what motivates them? This much we know: legislators criminalize, police arrest, prosecutors charge, judges sentence, prison officials confine, and probation and parole officials manage release.
As this Article reveals, jailers, too, have their hands on the controls. The sheriffs who run jails—along with the county commissioners who fund them—have tremendous but unrecognized power over the size and shape of our criminal legal system, particularly in rural areas and for people accused or convicted of low-level crimes.
Because they have the authority to build jails (or not) as well as the authority to release people (or not), they exercise significant control not merely over conditions but also over both the supply of and demand for jail bedspace: how large they should be, how many people they should confine, and who those people should be. By advocating, financing, and contracting for jail bedspace, sheriffs and commissioners determine who has a say and who has a stake in carceral expansion and contraction. Through their exercise of arrest and release powers, sheriffs affect how many and which people fill their cells. Constraints they create or relieve on carceral infrastructure exert or alleviate pressure on officials at the local, state, and federal levels.
Drawing on surveys of state statutes and of municipal securities filings, data from the Bureau of Justice Statistics, case law, and media coverage, this Article tells overlooked stories—of sheriffs who send their deputies out door knocking to convince voters to support a new tax to fund a new jail, and of commissioners who raise criminal court fees and sign contracts to detain “rental inmates” to ensure that incarceration “pays for itself.” It also tells of sheriffs who override the arrest decisions of city police officers, release defendants who have not made bail, and cut sentences short—and of those who would rather build more beds than push back on carceral inertia.
A spotlight on jails and the officials who run them illuminates important attributes of our carceral crisis. The power and incentives to build jail bedspace are as consequential as the power and incentives to fill it. Expanding a county’s jailing capacity has profound ramifications across local, state, and federal criminal legal systems. Sheriffs have a unique combination of controls over how big and how full their jails are, but this role consolidation does not produce the restraint that some have predicted. Their disclaimers of responsibility are a smokescreen, obscuring sheriffs’ bureaucratic commitment to perpetuating mass incarceration. State courts and federal agencies have increasingly recognized and regulated public profiteering through jail contracting, and advocates have begun to hold jailers accountable, challenging expansion in polling booths and budget meetings
Extending Trade Law Precedent
Get PDFPrecedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of clashing with state interests, most international dispute settlement systems are designed so that rulings do not set obligatory precedent.
This Article describes the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). This Article makes two main contributions. First, it shows that there can be precedent without a formal stare decisis rule. In theory the AB has a rule against binding precedent. Based on empirical evidence, however, this Article shows that the AB has in fact a strong norm of relying on prior decisions. Second, it shows that over time, the widening of legal commitments can result from extending precedent to new situations and this has an impact on the ability or willingness of states to comply. These findings have implications for the WTO and beyond. For the WTO, efforts to better define the value of precedent are unlikely to resolve the general mistrust of the AB and, therefore, this Article proposes other solutions to control the drift resulting from precedent. Beyond the WTO, international scholars should account for the intertemporal dimension of legal commitments in analyzing and explaining compliance with international law
Unilateral Cyber Sanctions: Between Questioned Legality and Normative Value
Get PDFThe current legal vacuum regarding binding international norms regulating malicious conduct in cyberspace has paved the way for the emergence of a unilateral tool: cyber sanctions. They have already been introduced by the United States, the European Union, and the United Kingdom. Notwithstanding their obvious importance, their interrelations with international law- especially international economic law-have remained largely unexplored in academic research. This gap is perplexing given the fact that the existing unilateral cyber sanctions have been formulated in such a way as to be prone to misuse. In particular, they bear a significant potential to disrupt economic relations and undermine global value chains.
The objective of this Article is to explore the legality of unilateral cyber sanctions under international law, including WTO law and international investment agreements. Our analysis reveals that cyber sanctions might, in some instances, violate international law or commitments made under international economic law instruments. Furthermore, cyber sanctions may not be justified as countermeasures, and they most likely would not meet the threshold set by the WTO jurisprudence to be justifiable under the national security exception. Similarly, they could be challenged before investment tribunals for being inconsistent with the international investment standards of treatment. Yet, cyber sanctions might be an effective instrument with the normative potential to regulate behavior in cyberspace. Notwithstanding this, their undefined status under international law has paradoxical implications. On one hand, it can allow ruthless use of unilateral cyber sanctions and the reinforcement of the politics of unilateral power, thus causing significant economic harm. On the other hand, it can undermine the signaling function and deterrence potential embedded in unilateral cyber sanctions
How to Make the Perfect Citizen? Lessons from China\u27s Social Credit System
Get PDFHow to make the perfect citizen? This has been one of the questions driving the construction of the Chinese Social Credit System: a technology-driven project that aims to assess, evaluate, and steer the behavior of Chinese citizens. After presenting social credit systems in China\u27s public and private sectors (Part II), the Article provides normative standards to distinguish the Chinese system from comparable systems in liberal democracies (Part III). It then discusses the concept of civic virtue, as implemented by the Social Credit System, claiming that it creates a new form of governance, cybernetic citizenship, which fundamentally changes the essence of citizenship and the political role of the state (Part IV). On the whole, the Article demonstrates how the Chinese . Social Credit System redefines the institution of citizenship and warns against similar patterns that are mushrooming in liberal democracies
Risk-Risk Tradeoffs for Mass Shootings and International Terrorism
No full textThis article elicits information about risk perceptions and risk–risk tradeoffs for mass shootings and international terrorist attacks. These prominent public risks are similar in many respects in that both involve traumatic injuries. One might expect that the risk–risk tradeoff rate would be 1.0 unless other attributes of these risks are pertinent. Estimates based on an original survey structured to test rates of tradeoff between deaths from these risks indicate that respondents consistently place a premium on reducing mass shooting risks, as compared to risks of international terrorism. The average premium is relatively stable even after accounting for the effect of differences in personal risk beliefs on policy preferences. The estimated rates of risk–risk tradeoff reflect a greater weight on mass shooting risks even for those who believe that international terrorism risks pose a greater personal threat
Reconstructing State Republics
Get PDFOur national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of Government.” As states descend into aristocratic cabals, the question of how to enforce the guarantee is of existential importance. This Article illuminates three enforcement mechanisms: direct legislation, federal incentives, and reconstructing state governments. It establishes that Congress, not the U.S. Supreme Court, is the institutional actor most capable of addressing the republican rot now plaguing the states
Leveling the Playing Field: Industrial Policy and Export-Contingent Subsidies in India-Export Related Measures
Get PDFIn India–Export Related Measures, the United States challenged a range of Indian measures as prohibited export-contingent subsidies, and a WTO panel largely agreed. This article examines the factors at play in the United States’ decision to bring the challenge. At the level of policy, the United States case reflects India’s graduation from the protections afforded developing nations’ export-contingent subsidies under the Agreement on Subsidies and Countervailing Measures. A closer examination, however, shows that India ramped up its export-contingent subsidies just as the SCM Agreement required it to wind those subsidies down. Moreover, the expanded Indian subsidies led to increased import competition with the politically influential metals and pharmaceutical sectors in the United States, which pushed the US challenge. We reflect on the larger implications of the challenge for the future of trade rules on industrial policy. In particular, we note that the United States pursued a trade enforcement policy that would have the effect of increasing pharmaceutical prices in the United States, by reducing subsidies for imported generic drugs, at a time when the Trump administration allegedly was trying to reduce the price of prescription drugs. This disconnect suggests the need for both greater transparency in trade policy and greater governmental coordination on the connection between trade policy and other policy priorities
Interstate Commerce in Cannabis
Get PDFBy the end of 2020, more than thirty states had legalized cannabis containing tetrahydrocannabinol ( THC ) for at least some purposes.\u27 Each of these states has authorized firms to produce and sell cannabis within its borders. In 2019, those state-licensed firms did a brisk business, selling more than 13 billion of cannabis is now being sold (legally) across state lines. Instead, each legalization state now has its own, hermetically sealed local cannabis market, supplied entirely by cannabis cultivated and processed inside the state. For example, the $1.75 billion worth of cannabis that was sold by Colorado-licensed stores in 2019 was all grown and processed by firms located inside Colorado. These state-based markets for cannabis contrast with the national markets that now exist for virtually every other consumer good. From bananas to beer, few of the goods we see on store shelves today are grown, processed, or manufactured locally.
The lack of interstate commerce in cannabis is commonly attributed to the federal government\u27s marijuana ban. Notwithstanding the dramatic liberalization of state law over the past twenty-five years, federal law continues to ban the production, possession, and sale of marijuana. The conventional wisdom is that interstate commerce in cannabis--and the development of a national cannabis market--cannot develop until Congress or the President repeals the federal ban and removes this barrier
Sexkopslagen in the States: An American Version of the Nordic Model to Address Sex Trafficking in the United States
Get PDFProstitution, and the widely-encompassing commercial sex industry, has been a staple of all societies for centuries. Although the typical narrative regarding prostitution is one of moral abhorrence and criminalization, prostitution\u27s spotlight has been recast with the acknowledgment and advocacy against related conduct: sex trafficking. Traffickers earn about 99 million of which is accounted for by sex trafficking. Although the United States officially criminalized trafficking in 2000, those engaged in prostitution, whether voluntarily or via trafficking, continue to be criminalized and further victimized through legal schemes perpetuated by the federal and state governments. Various other countries--including the Netherlands and Sweden--operate very different legal systems, ranging from complete decriminalization to making only the purchase, not the sale, of sex illegal. Although every legal scheme champions different goals and values, protecting individual freedoms and targeting exploiters, no system perfectly, or even effectively, protects sex trafficking victims.
This Note proposes state-level legislative measures designed to promote victim identification and victim safety, as well as to decrease exploitation in the commercial sex industry. These policy proposals include sex purchase laws prohibiting the purchase of sex instead of the sale of sex, stricter penalties for pimps and sex buyers, increased funding for victims\u27 services and law enforcement education, and the criminalization of extraterritorial commercial sex with adults at the federal level
