Legal Final Section 2

Critical Legal Studies perspectives:

-Law is not neutral

-Law is indeterminate—not based on principles that can be applied across cases

-Law is an expression of political, economic, and social reality

-Law advances the interests of the privileged (race, gender, class)

-Precedent fosters existing power relationships

Critical Race theory- 

-Race is socially constructed

-Race and racism is baked into the legal system in ways that advantage white people and justify their superiority

-This is pervasive, yet unnoticed because racism is embedded in the legal system, it’s hard to use the legal system to undo it

-There is a strong connection between current inequalities and past practices of exclusion

Critiques of critical race theory/CLS/feminist legal theory

Elevating problems of race and gender

Research on it tends to based on anecdotes rather than scientific evidence

“Trying to make people feel bad”

Feminist Legal theory-

-Gender is baked into the legal system in ways that advantage men

-The law creates and reinforces gender roles, and even gender itself

-Gender-specific harms are not taken seriously by the legal system

Social construction of race-

The idea that racial distinctions are based, not on real differences between people, but on social construction of these differences

Examples:

Slavery

First law defining US Citizenship (1790)-only white men were citizens

“One drop” rules (you were considered Black even if you had one singular Black ancestor)

Redlining-

Redlining is when services like loans or insurance are denied or made more 

expensive for people in certain areas, often based on race.

It got its name from maps where minority neighborhoods were outlined in red to show they were "risky" for investment.

exasterbates racial wealth gaps

Bradwell v. Illinois (1873)-

-Supreme Court case where Myra Bradwell was denied the right to practice law in 

Illinois because she was a woman.

-The Court upheld the decision, arguing that the  Constitution did not guarantee women the right to work in professions like law.

-Example of feminist legal studies

Discretion-

Any legal actor has discretion- leeway freedom in regard to how they respond to a situation

Police discretion-

good amount of freedom to make choices, impossible for them to enforce the law in every situation 

Ex decision to stop someone, to make an arrest, to use force

When you give police broad discretion/power gives space for bias and abuse in their decision making 

Necessary in our complicated legal system but can be a mechanism for bias

Roles of police-

 To ensure public safety and that the law is being carried out

Community Policing

Focuses on building strong relationships between police and the community to solve problems collaboratively and prevent crime.

Broken Windows Theory

Addressing minor offenses and maintaining order prevents bigger crimes/discourages criminal behavior.

Limitations on discretion-

-Constitution (4th amendment-unreasonable searches & seizures, 8th amendment-cruel and unusual punishment)

-Section 1983 lawsuits (sue gov. actors if they believe they violated their constitutional rights)

-Culture of law enforcement environment

Whether police have too much or too little discretion and influences and limitations on discretion:

-Excessive discretion can lead to bias, inconsistent enforcement, and abuse of power, 

while too little discretion limits officers' ability to adapt to unique situations. 

-Influences on discretion include individual beliefs, situational factors, 

organizational policies, community expectations, and legal frameworks. 

-Limitations on discretion come from laws, departmental rules, accountability 

mechanisms, and ethical standards.

examples of areas in which legal actors have discretion:

1. Police Officers: Deciding whether to issue a warning, make an arrest, or investigate further in a given situation.

2. Judges: Choosing appropriate sentences within legal guidelines, interpreting laws, or deciding whether to admit certain evidence in court.

3. Prosecutors: Determining whether to file charges, what charges to bring, or whether to offer plea deals.

problems with discretion:

1. Bias and Discrimination: Decisions made with discretion can be influenced by personal biases, leading to unequal treatment based on race, gender, or other factors.

2. Inconsistency: Different legal actors may make different decisions in similar situations, resulting in a lack of uniformity.

3. Abuse of Power: Discretion can sometimes be misused, leading to unfair or unethical actions, such as favoritism or corruption.

4. Lack of Transparency: Discretionary decisions are often subjective, making it difficult to understand or challenge the reasoning behind them.

Limitations of police power-

-Limitations on police power are designed to prevent abuse and ensure accountability: 1. constitutional protections (e.g., the Fourth Amendment against unreasonable searches)

2. departmental policies that regulate conduct

3. oversight mechanisms (body cameras)

4. civilian review boards.

Criminal liability for police-

Refers to situations where officers can be held legally responsible for committing crimes, just like any other individual.

1. actions such as excessive use of force, 

2. corruption,

3. unlawful searches, or

4. violating constitutional rights.

   If found guilty, officers can face criminal charges, including fines, imprisonment, or other penalties, depending on the severity of the offense.

Civil liability for police-

Refers to situations where officers or departments can be held legally responsible for

violating someone's rights or causing harm during the performance of their duties. 

This often involves:

1. lawsuits for actions like excessive force

2.wrongful arrests 

3.negligence, where victims seek monetary compensation for damages.

Civil liability is governed by laws like Section 1983 of the U.S. Code, which allows individuals to sue for violations of constitutional rights.

Pattern or practice investigations-

DOJ inquiries to see if a law enforcement agency have a pattern or practice of systemic misconduct

Civilian oversight boards-

independent groups made up of community members tasked with monitoring and 

reviewing police conduct.

Their role is to ensure accountability by:

-investigating complaints

-reviewing policies

-recommending reforms to address misconduct 

-improve police-community relations

Defund the police movement-

Reallocating funds from police departments to community programs and services (education, mental health care, and housing)

Addresses the root causes of crime and reduces reliance on policing, while critics fear it could compromise public safety.

The movement does not always call for eliminating police but instead focuses on restructuring budgets to prioritize social investments.

proposed reforms for police at the local level:

community policing

increased training

civillian oversight boards

Retribution

Punishment is a form of moral vengeance, ensuring that offenders "pay" for their crimes.

Based on the idea of justice and proportionality, meaning the punishment should fit the crime.

Deterrence

punishment in society to deter future criminal activity, part of the reason why there are really harsh consequences for certain crimes. 

EX death penalty

problems with deterrence theory-

People don't understand the consequences of their actions for certain crimes

-ex stealing person's computer 

Drugs and alcohol

-very high percentage of criminal activity takes place when ppl are under the 

Influence

Rehabilitation

Focuses on reforming the offender so they can reintegrate into society.

This theory emphasizes addressing the root causes of criminal behavior, such as addiction or lack of education.

Incapacitation

Punishment seeks to protect society by removing the offender's ability to commit further crimes, often through imprisonment.

Restoration

Aims to repair the harm caused by the crime, often through restitution or reconciliation between the offender and the victim.

theories of punishment

1. Retribution

2. Deterrence

3. Rehabilitation

4. Incapacitation

5. Restoration

Mandatory minimums-

-Fixed sentences for certain crimes, leave judges little discretion in sentencing

-In place since 1980s at federal and state level

Problems with mandatory minimums-

-Has resulted in high rates of incarceration for nonviolent drug offenders

-Disproportionately African American and Latino men

Mandatory minimum reforms-

focus on changing laws that require fixed, minimum sentences for certain crimes, often drug-related offenses.

These reforms aim to address issues like prison overcrowding, racial disparities, and the inability of judges to consider individual circumstances

the positives and negatives of deterrence theory and under what conditions it is most effective:

Deterrence theory aims to prevent crime by instilling fear of punishment

positives: reduced crime rates and discouraging others from offending, 

negatives: involve its ineffectiveness for impulsive crimes or when punishments are 

perceived as unfair.

It is most effective when punishments are swift, certain, and proportional, creating a clear connection between the crime and its consequences.

the desirability of mandatory minimum sentences:

issues like the removal of judicial discretion, disproportionate sentencing for nonviolent offenders, and contributions to prison overcrowding and systemic inequities.