A teenager grieving his parents' death gets drunk and goes on a vandalism spree. His probation officer suggests that instead of going to jail, the teen and his accomplice could meet their victims and face the impact of their actions. The teens do so; they then pay restitution to help repair the harm. Born out of the restorative justice movement, this type of restitution-marked by careful tailoring-reduces recidivism and rehabilitates young offenders. The juvenile thus moves away from the criminal justice system while victims receive their rightful compensation. This was restitution's early promise.(1) But another strand ofjuvenile restitution, rooted in the tough-on-crime policies of the 1980s, grew up alongside the restorative justice movement. This strand tends to have the opposite effect. State juvenile restitution laws vary widely, but many impose juvenile restitution that is broad, mandatory, and permanent. The resulting levels of debt can be unrealistically high, following young offenders into adulthood and leaving the victim uncompensated. This kind of untailored restitution pulls juveniles deeper into the system, as it can prompt probation revocation, continued court supervision, reduced educational and employment opportunities, and hopeless debt. This harsh genre of restitution debuted in expansive federal restitution statutes in the 1980s and then moved into state victims' rights statutes. Juvenile law soon followed. Juvenile criminal justice has moved in recent decades toward a rehabilitative model, due in part to new information. The young mind, research has shown, is different from that of adults-more impulsive, struggling to foresee the consequences of certain actions. Less blameworthy. Accordingly, the Supreme Court eliminated the death penalty for crimes committed by minors and limited juvenile life without parole. Arrest and incarceration rates for juveniles have been halved since the 1980s. Yet restitution laws, for the most part, have barely changed since their tough-on-crime inception; juveniles therefore remain subject to lasting involvement in the criminal justice system a burden that amounts to a financial death penalty. This article explains why juvenile restitution should now change too. The time has come for restitution that achieves its rehabilitative goals for juveniles while also compensating victims.
Artificial intelligence, machine learning, and algorithmic prediction tools have made huge advances in recent years. Some argue that we are on the precipice of a major revolution in our economy and society, in which eager adoption of these new technologies will transform how work is done. This Article argues that change might come more slowly to the legal sphere than is commonly thought. We present the results of a criminal justice field experiment in which we provided novel sentence prediction software to public defenders. In some regards, the experiment was a failure. Usage of the prediction software was so low that we were unable to evaluate its impact on sentencing. This is despite strong a priori expressions of interest and tests showing that our algorithm is more accurate than the public defenders at predicting sentences. However, this failure produced valuable insights about why predictive AI might face headwinds in the legal profession. Extensive interviews, a prediction "quiz," and our empirical results revealed the following takeaways. First, attorneys place a high bar on adopting new technology due both to workflow inertia and skepticism about benefits. Second, some attorneys were distrustful of an algorithm that did not have all of the information they had even if the algorithm still provided more accurate information than their intuition. Third, algorithm design entails challenging ethical questions that can reduce trust and use among users. We discuss these issues in detail and suggest some possible paths forward.
On November 4, 2024, incoming President Donald Trump vowed to "launch the largest deportation program of criminals in American history."' Within six months of taking office, it became clear that this was no empty threat. A defining characteristic of the Trump II Administration's aggressive immigration enforcement agenda is the substantial authorization of, and reliance upon, subfederal action. Albeit unconventional, the Trump II Administration's mobilization of subfederal immigration regulatory channels is far from unprecedented. In recent years, states and localities have emerged as the leading architects of immigration laws and policies, outpacing the federal government in terms of both influence and scope. Although it is well-established that the federal government maintains exclusive authority over pure immigration determinations and that subfederal entities retain the residual authority to adopt non-conflictual alienage provisions, the intricacies of this power-sharing relationship remain underexamined. While the subfederal propagation of restrictionist policies threatens to violate individual constitutional rights, entrench stigmatizing anti-immigrant narratives, and erode noncitizens' quality of life, this Note proffers several prescriptive recommendations designed to mitigate these harms. In addition to clarifying how preemption challenges involving subfederal immigration laws should be resolved, courts should meaningfully consider the equal protection concerns arising out of the same legislative nuclei. Furthermore, the federal government should appoint a liaison to manage vertical integration discourse with subfederal governments and should, in response to articulated grievances, regularize the dispersal offederal funds to offset the subfederal costs associated with immigration-related activity because subfederal governments are more likely to engage with integrationist ideas when they are not exclusively responsible for bearing the burden of the associated costs.
Courts have long shielded police violence from accountability, foreclosing remedies for victims and survivors, and stymying systemic change. Although scholars have examined the doctrinal barriers insulating police misconduct, this Article is the first to develop a comprehensive theory of how these doctrines operate within a unified system of injustice deflection. It posits that the legal system does not merely excuse or fail to remedy police violence; rather, it transforms that violence into a permissible and structurally entrenched practice. Police violence, this Article contends, is not an aberration but a deliberate failure ofjustice sustained by doctrines that shield the state from accountability and a legal architecture that deflects demands for structural transformation. By constructing injustice deflection as a theory of legal legitimation, this Article builds on and transcends existing scholarship on injustice. It reconceives how law normalizes state violence, revealing the doctrinal and institutional mechanisms that insulate police misconduct from meaningful challenge. Scrutinizing civil rights jurisprudence, the Article demonstrates how courts, in invoking doctrines like qualified immunity and excessive force, recast police violence as an isolated misfortune rather than a constitutional failure or actionable injustice. More than a shield for individual officers, this injustice deflection reshapes the law's understanding of state-inflicted harm. By excluding the moral and legal claims of those most harmed, it limits whose suffering the law acknowledges and leaves unheard their demands for redress. To dismantle injustice deflection, this Article calls for a victim-centered recalibration of legal doctrine and institutional design that addresses victims and survivors' harms on their own terms. Recognizing the limits of doctrinal reform, the Article advocates for community-centered initiatives grounded in transitional and restorative justice truth commissions, reparative processes, and mechanisms for acknowledgment, apology, and redress that foreground victims and survivors' voices and foster structural change. Reframing police violence as pervasive injustice is essential to vindicating constitutional rights and restoring public trust. Only by confronting, rather than deflecting, policing injustice can courts and communities dismantle entrenched systems of state-sanctioned violence and construct accountability structures responsive to the moral, political, and structural dimensions of state-inflicted harm.
Medications for Opioid Use Disorder (MOUD) are proven to save lives. Yet, too often, people who have contact with the criminal justice system are prohibited from accessing this lifesaving medical care. Such prohibitions on effective healthcare would be unimaginable if prison or probation officers were denying people with diabetes access to insulin. But because of the stigma facing people with opioid use disorder (OUD), MOUD is routinely denied. Recent litigation and policy efforts have increased access to MOUD in jails and prison. This Article argues that this litigation and policy strategy needs to be expanded throughout the criminal justice system, including to people under court supervision like probation and parole.
Disability criminalization occurs when individuals are exposed to criminal legal system involvement-whether stops, arrests, detention, discipline, and punishment for engaging in behaviors, norms, and conduct linked to, or caused by, their disabilities. This Article provides a short primer on disability criminalization. It defines the concept before turning to key sites where disability criminalization occurs. The Article concludes with a discussion of Critical Disability Studies and how that discipline may be used by advocates as a vehicle for contesting disability criminalization.
Probation, parole, and other forms of post-conviction supervision are challenging for anyone, requiring strict adherence to dozens of complex rules under threat of incarceration for any slip-up. For the high number of people on supervision who have disabilities, supervision is even more challenging. Disabled people regularly face barriers to understanding their supervision obligations, physically getting to required meeting locations, keeping track of their myriad obligations, and attending mandated appointments while experiencing serious health issues. People with disabilities therefore regularly need reasonable accommodations to meet their supervision requirements, such as plain-language explanations of their supervision rules, appointment reminders, sign language interpreters, and flexible meeting scheduling. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 require agencies administering supervision to assess the accommodation needs of people with disabilities and provide needed accommodations to ensure they have an equal opportunity to succeed on supervision. But supervision systems throughout the United States are failing to fulfill this legal obligation setting disabled people up for failure. This Article explores the obstacles to completing supervision for people with disabilities, supervision agencies' legal obligations to accommodate them, and strategies to ensure access to reasonable accommodations.
People with disabilities are overpoliced and, as a result, disproportionately suffer injuries caused by police misconduct. Section 1983 is the primary vehicle for remedying injuries caused by police misconduct, but the cause of action is increasingly encumbered. Practitioners, scholars, and courts alike have criticized the doctrinal barriers that systematically disadvantage 1983 plaintiffs, including the immunities framework, municipal liability doctrine, and the exclusion offederal officers. In light of these restrictions on constitutional claims, and given the high proportion of people with disabilities among those injured by the police, federal disability law is often a preferrable cause of action for civil rights claimants in the policing context. Title II of the Americans with Disabilities Act applies to police agencies and emergency response services, and it poses several distinct advantages for plaintiffs relative to 1983. Civil rights litigators should raise disability discrimination claims in the policing context more often, as consistent with recent high-profile actions by organizational plaintiff's and the Department of Justice aiming to reform systemic police practices.
This Article examines a dilemma in disability law in the prison context. The Seventh Circuit held in Bryant v. Madigan that a disability cannot be "treated" with medical care. That is, prescribed medical treatment cannot be a reasonable accommodation under the Americans with Disabilities Act (ADA). Yet plaintiffs often allege Eighth Amendment medical deliberate indifference claims and disability rights claims for the same injury. This Article situates this tension and explains how plaintiffs have successfully navigated it. The argument is straightforward: if access to a medical service is discriminatorily barred or if a reasonable accommodation is denied, then the plaintiff has an ADA claim. And if medically necessary care is denied and the prison officials acted with deliberate indifference, then the plaintiff also has an Eighth Amendment claim. The Article illustrates how plaintiffs with gender dysphoria may navigate Bryant to pursue reasonable accommodations under the ADA. Finally, the Article argues that ADA claims are more advantageous than Eighth Amendment claims from a liberationist perspective that resists ableism and the medicalization of trans people and embraces the full spectrum of accommodations to gender dysphoria that trans people may seek.
In its 1996 opinion Bryant v. Madigan, the Seventh Circuit held that incarcerated plaintiffs could not challenge the prison's failure to provide medical care under the Americans with Disabilities Act (ADA). The court grounded the rule not in the text of the ADA, which contradicts it, but instead in the policy goals of the panel. Despite the opinion's methodological flaws, nearly every circuit has adopted its rule, often with little or no analysis, and district courts often expand their holdings to abrogate the ADA entirely as to incarcerated plaintiffs. In Part I, this Article explains Bryant, its flaws, and its consequences. In Part II, this Article attempts an explanation at Bryant's influence, specifically how its invented rule allows courts to square prison ADA claims which are difficult to resolve before trial with their reflexive impulse to resolve prison claims at early stages carried over from constitutional claims. Finally, in Part III, this Article attempts to provide some guidelines that courts should use to faithfully apply the rule from Bryant for as long as courts are stuck with it rather than expanding it to abrogate disability law for people most reliant on it.
The figure of the victim has played a central role in the consolidation of a uniquely punitive criminal legal system. Over the last decades, however, multiple actors have raised serious concerns about the benefits of this punitive strategy. In particular, U.S. penal abolitionists have called to abandon the current state driven response to crimes primarily concerned with the imposition of harsh punishment. Instead, they advocate for implementing alternative non-punitive response mechanisms that address the harm crimes inflict on victims and the wider community. In response to these demands, abolitionists have proposed a series of "non-reformist reforms" to unravel the punitive logic that underlies the institutional response to crimes. Despite the merits of abolitionists' proposals, it is reasonable to assume that criminal trials will continue to be a necessary alternative when responding to crimes. Thus, questions about victims' role in this institutional setting continue to be relevant. Against this backdrop, this Article's primary goal is to rethink the scope and aims of the adversarial criminal process in light of victims' quest for recognition. In doing so, this Article contributes to ongoing discussions in three distinctive ways. First, it probes the normative grounds for shifting towards a victim-oriented criminal process. Second, it explores the implications of this shift for the design and structure of the adversarial process. Finally, it analyzes the merits of this shift in light of contemporary critiques of the criminal legal system. This Article proceeds in four parts. Part I critically examines the prevailing portrayal of victims as inherently weak and punitive individuals to illustrate the limits of this narrative. Building on Nancy Fraser' s work, Part II argues that victims' past and present demands can be better understood as part of a broader quest for recognition as full partners in social interactions. Under this theoretical framework, the Article advocates shifting towards a victim-oriented criminal process. This shift has two key implications. First, it puts victims' experiences, interests, and well-being at the center of the institutional response to crimes. Second, it affords victims meaningful participation in the legal proceedings. Part III analyzes the impact shifting towards a victim-oriented criminal process has before, during, and after a criminal trial. Specifically, it reviews these victims' duty to participate in the criminal process, reevaluates prosecutors' role and discretion, and discusses the application of victim impact statements. To conclude, Part IV analyzes the benefits and limits of the proposed shift towards a victim-oriented criminal process in light of abolitionists' demand to move beyond punishment when responding to crimes.
