Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.
Cite as: Amy F. Kimpel, Paying For a Clean Record, 112 J. Crim. L. & Criminology 439 (2022).
The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried. But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important system aiming to both surveil and care for individuals. It draws together two frameworks: 1) law and policy which describe the juvenile probation system as intended, and 2) juvenile probation practices and attitudes which reveal the day-to-day translation of the system’s formal intentions. Ultimately, where a system’s approach to rehabilitation and accountability become synonymous with or too reflexively able to adopt surveillance, containment, and punishment orientations, its ability to deliver meaningful help and support through that same system is improbable. Thus, this Article discusses the need in the United States to reform, dismantle, or replace probation with youth development-focused systems and uses Los Angeles as an example of a government already doing this important work.
Cite as: Patricia Soung, Is Juvenile Probation Obsolete? Reexamining and Reimagining Youth Probation Law, Policy, and Practice, 112 J. Crim. L. & Criminology 549 (2022).
This study describes how judges in Maricopa County, Arizona responded to age and other mitigation evidence in imposing “life” versus “natural life” sentences for juvenile offenders convicted of homicide in pre-Miller cases. Maricopa County was selected for this case study because of its history of adhering to “restrictive interpretations” of various kinds of mitigation evidence and because of the characteristics of this county’s local court community. The study employed a mixed-methods design consisting of a content analysis of relevant case documents and a quantitative analysis of the findings from the qualitative analyses of legal case documents. It examined 82% of the juveniles given natural life sentences and 72% of the juveniles given a sentence of life (25-to-life) in Maricopa County. The findings of this study indicated that judges referenced age as a statutory mitigating factor in 17% of both “life” and “natural life” cases, and age as a reason for the sentences imposed in 46% of both “life” and “natural life” cases. However, the age-relevant and other mitigating reasons referenced by judges lacked statistically significant associations with the sentences that the judges imposed. The only judicial reason with a statistically significant association with the imposed sentences was “emotional impact of the crime on the victim’s family.” The implications of this and other findings for “full responsibility” and “mitigation” approaches for blaming juvenile lifers were discussed, as well as the need for future research on post-Miller sentencing and resentencing processes.
Cite as: José B. Ashford, Katherine Puzauskas & Robert J. Dormady, Judicial Responses to Age and Other Mitigating Evidence: An Exploratory Case Study of Juvenile Life Sentences in Pre-Miller Cases, 112 J. Crim. L. & Criminology 593 (2022).
When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments of Jeffrey Epstein and the lifestyle brand NXIVM demonstrate that trafficking schemes are frequently much more complex than that tripartite structure and involve many other individuals who either participated or were involved in the illicit conduct. As such, the way federal authorities investigate sex trafficking can, and should be, reimagined. Combining this knowledge with further research into the psychological effects of saddling victims with the burden of carrying an investigation through to conviction, sex trafficking investigators can look to prosecutorial tactics used by the Antitrust Division of the Department of Justice. Since 1993, the Antitrust Division has operated their Amnesty Program, which grants immunity to those who either engage in or have knowledge of an illegal price-fixing scheme, and voluntarily bring this information to the government. The Division has seen great success with their leniency program, as over 90% of cases in the Division now begin with an amnesty cooperator. This Comment proposes that a similar leniency program could be utilized for investigating sex trafficking. A leniency program recognizes the three realities listed above: it fits within a reactive process for identifying cases, it relieves burdens on victims to begin investigations, and it recognizes that there are many other individuals who could provide information about illegal trafficking.
Cite as: Evan Binder, Getting Out of Traffic: Applying White Collar Investigative Tactics to Increase Detection of Sex Trafficking Cases, 112 J. Crim. L. & Criminology 631 (2022).
Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop where police discover a firearm under the seat of the car. Research indicates that mandating prison sentences for gun possession is not an effective tool for reducing gun violence. Yet, as this Comment describes, the painful status quo has proven difficult to change, even for “progressive prosecutors” elected to reform criminal justice. This Comment draws on first-hand interviews to detail how progressive prosecutors handle gun possession cases in practice. While these prosecutors advance some important changes, reforms remain limited by practical and political realities. To aid in breaking through these barriers, this Comment proposes a new cost-benefit framework called “Burden-Adjusted Violence Averted” (BAVA). BAVA yields the simple insight that we should invest in policies that do the most to reduce gun violence with the least pain and inequity. Imprisoning people for simple gun possession is deeply burdensome. And, in comparison to community-based anti-violence interventions, it is less likely to make our cities safe.
Cite as: Robert Weiss, Rethinking Prison for Non-Violent Gun Possession, 112 J. Crim. L. & Criminology 665 (2022).