Michael Serota
Volume 17.2
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Volume 17.2

Spring 2020

Guest Editor's Note

#MeToo and Mass Incarceration

When I was a law student and an aspiring criminal lawyer, I always felt mired in a feminist defense attorney dilemma. On the one hand, I was intimately familiar with the harms of sexual assault and firmly believed that gender crimes reflected and reinforced women’s second-class status. On the other, I was involved in public defense and anti-incarceration work and had come to regard the prison as a primary site of violence, racism, and degradation in society...


Victims’ Rights from a Restorative Perspective

The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to...


#MeToo and the Myth of the Juvenile Sex Offender

The #MeToo movement has brought much needed attention to women’s and girls’ victimization and the systemic nature of sexual harm. It can also be credited with concrete benefits such as increased reporting of sexual assault and harassment. What has been overlooked, however, is that it also has real downsides, as does, more broadly, the criminal legal system’s (CLS) treatment of sexual harm. Specifically, our approach to sexual harm reveals the pathologies...


Reconciling #MeToo and Criminal Justice

Depending on who you ask, the #MeToo movement is either overdue or overreaching, but it seems everyone has heard of it. The response to actress Alyssa Milano’s tweet inviting women who experienced sexual harassment or assault to tweet “#MeToo” was overwhelming. “MeToo” was retweeted nearly half a million times within twenty-four hours. Several celebrities tweeted “#MeToo” or shared their stories, including Anna Paquin, Debra Messing, Rosario Dawson, Gabrielle Union...


Rethinking the Relationship Between Punishment and Policing

Gabriel Mendlow has published a rich and provocative essay on thought crimes. In it, he argues that punishing thoughts is wrong, in essence, because mind control is wrong. According to Professor Mendlow, (1) we enjoy a right of “mental integrity” that forbids the state from controlling our thoughts, and (2) authority to control is a prerequisite of authority to punish; if the state may not directly control an activity on the basis of its wrongness...


How do You Plead, and Why? How Attorney Experience and Defendant Background Affect Plea Bargaining

For better or worse, plea bargaining has become an integral part of the United States criminal justice system. Various studies have been conducted to determine how defendants respond to plea offers and how actual innocence colors their decision. This essay describes the results of a first-of-its-kind study designed to analyze how a legal counsel’s level of experience affects willingness to accept a plea offer. Furthermore, the variables of participant race...


Truth or Consequences: Making the Case for Transparency and Reform in the Plea Negotiation Process

Directly adjacent to the Thomas J. Moyer Ohio Judicial Center in Columbus, Ohio, which is the home of the Supreme Court of Ohio, sits a beautiful water fountain. The artist who created it called it “In principle and in practice.” At the base of the fountain visitors can view many of the words we identify as basic tenets of our judicial system, including truth, honesty, and integrity. These tenets are the very values upon which our system ...


May the State Punish What it May Not Prevent?

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from...


Prohibition’s Fourth Amendment Confessions Rule

Brown v. Mississippi is one of the most famous cases decided by the Supreme Court, involving the most infamous police interrogation in American history. Three black sharecroppers were sentenced to hang for murder based on confessions extracted by lengthy periods of whipping and hanging—treatment one of their tormenters described as “not too much for a Negro.” The Court held that the defendants’ coerced confession was inadmissible...


An Honest Drug Offender Sentencing Letter

To the Honorable United States District Court Judge of District Anywhere USA: Both of us are very familiar with this point in a case. My client has pled guilty to a drug trafficking crime. You have accepted the plea. The presentence report is done and in your hands. The mathematics of the sentencing guidelines is complete. The prosecutor has provided a vivid account of my client’s criminal conduct and his criminal history to justify the sentence...