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What The Numbers Say About How To Reduce Imprisonment: Offenses, Returns, and Turnover
Get PDFReformers across the political spectrum are calling for a rollback of mass incarceration. The U.S. rate of incarceration in state prisons would have to decline by 75% to return to its 1970s level. How might this be accomplished? This Article provides descriptive statistics about the mix of offenses, sentence lengths, and admission types and shows that no single approach can undo mass incarceration. Those classified as violent offenders are a majority of those in prison, but nonviolent offenders are a majority of those entering, leaving, or having been in prison. A majority of those in prison are scheduled to be released within five years, meaning that steep reductions in prison admissions can have a large impact on imprisonment rates. Revisiting the sentences and parole options for those who have already been in prison ten years or more could have some impact. An examination of the rate of returns to prison after a first release from prison suggests that the rate of committing a new crime is low and that reductions in revocations for violations of the conditions of supervision are an important avenue for reducing incarceration. The U.S. states vary greatly in their mixes of prisoners by offense, sentence length, and returns to prison for parole violations with no new crime as well as in their histories of trends over time. States will vary markedly in which reforms will affect their prison populations, and assumptions based on old data may not hold true as conditions change
Balancing SORNA and the Sixth Amendment: The Case for a Restricted Circumstance-Specific Approach
Get PDFThe Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for sentencing purposes, federal courts apply what is known as the “categorical approach,” which involves the courts comparing the elements of the prior state-level offense to those of a generic federal offense to determine whether there is a categorical match between the two. But in the context of SORNA, more and more federal courts are looking beyond the bare elements of a prior state-level conviction to the facts underlying the conviction and using that information to determine whether the defendant before them is indeed a “sex offender” under SORNA. This Comment argues that, while federal sentencing courts may indeed be entitled to look past the bare elements of the prior offense in certain SORNA cases, looking to anything beyond facts that were already admitted by the defendant in a prior proceeding could raise Sixth Amendment concerns. Therefore, this Comment recommends the adoption of new approach to statutory comparison, a “restricted circumstance-specific approach,” that would appropriately balance those Sixth Amendment concerns with Congress’s intent that SORNA protect the public from sex offenders
Corporate Governance and the Omnipresent Specter of Political Bias
Get PDFSubject to important qualifications, corporate decision-makers are dutybound to maximize shareholder value. However, there is reason to believe corporate decision-makers are allowing their political biases to corrupt their decision-making. This Essay posits two related fact patterns that should concern advocates of good corporate governance. The first occurs when decision-makers expressly disavow any duty to maximize shareholder value, such as when Apple CEO, Tim Cook, told shareholders, “When we work on making our devices accessible by the blind, I don’t consider the bloody ROI [return on investment],” or when Ed Stack, the chairman and chief executive of Dick’s Sporting Goods, decided that Dick’s should “take a stand” on gun violence by foregoing the sale of assault-style weapons, and said in connection therewith, “I don’t really care what the financial implication is.” This type of situation arguably breaches at least the duties of care and good faith without any change to current law. Importantly, breach of the duty of good faith may not be immunized by the seemingly ubiquitous contractual waivers of the duty of care. The second relevant fact pattern occurs when a decision-maker does not expressly disavow shareholder wealth maximization, but rather points to other arguably political goals as the basis for the decision, and is silent as to the impact on shareholder value. For example, when Gillette launched its advertising campaign challenging “toxic masculinity,” it publicly justified the decision not on the basis of an expectation of increasing sales, but rather on the grounds that it wanted to spark “a lot of passionate dialogue” and get people “to stop and think about what it means to be our best selves.” In order to address the corrupting influence of political bias to the extent it is manifest in this latter type of conduct, a change in the law may be required. This Essay argues that a ready blueprint for such a change already exists in the response of the Delaware judiciary to the omnipresent specter of directorial self-interest when adopting anti-takeover defenses. Specifically, cases like Unocal Corp. v. Mesa Petroleum Co. apply enhanced judicial scrutiny in such cases before granting decision-makers the benefit of the deferential business judgment rule. Finally, this Essay addresses criticisms of the proposed approach, including the view that the proposed approach would subject too many business decisions to an inefficient risk of enhanced scrutiny and that the challenged proclamations should be treated as mere puffery or are perhaps even necessary to maximize shareholder value
Who Knows the Difference Between Competitive Cheerleading, Sideline Cheerleading, Acrobatics and Tumbling? Why this Distinction is so Important for Title IX
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How Circuits Can Fix Their Splits
Get PDFThe desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts or fundamentally restructuring the Supreme Court. This Article offers a straight-forward yet transformational proposal overlooked in these debates: let the courts of appeals resolve their conflicts on their own. This Article argues that the federal courts of appeals should resolve circuit splits on their own, rather than rely on the Supreme Court, and lays out how they could do so. A judge-made doctrine known as the “law of the circuit” prohibits a later panel of a court of appeals from revisiting an earlier panel’s decision, even when the earlier decision has resulted in a conflict with another circuit. Because practically all work in the courts of appeals is done by three-judge panels, the law of the circuit doctrine has the effect of locking conflicts in place—the first circuit to address an issue cannot confront the reasons that motivated a latter circuit to come to a different conclusion. Instead, every circuit gets one chance to weigh in and, as a practical matter, no circuit can ever resolve the conflict. I therefore propose relaxing the law of the circuit doctrine when a circuit’s prior decision has resulted in a conflict with another circuit. This proposal is narrowly tailored, identifying tools already in use in some courts of appeals that would allow them to relax the doctrine and revisit a prior decision, but only where that prior decision has subsequently resulted in a conflict with another circuit. This creates the opportunity to address the conflict without Supreme Court intervention while maintaining the existing doctrine’s benefits in the vast majority of the court of appeals’ cases. Yet the proposal is also transformational, fundamentally changing the relationship between the federal appellate courts by empowering the courts of appeals to engage in dialogue with each other and reducing reliance on the Supreme Court. This Article therefore offers a realistic proposal for achieving important structural and institutional improvements in the federal courts at a lower cost and with less disruption than existing proposals
