Law Review Articles

Law Review Publications

  • ABSTRACT: We review statistical patterns of the geographic distribution of US executions, compare them to homicides, and demonstrate extremely high degrees of concentration of executions in the modern period compared to previous historical periods. We further show that this unprecedented level of concentration has been increasing over the past 20 years. We demonstrate that it is virtually uncorrelated with factors related to homicides. Finally, we show that it corresponds to a statistical distribution associated with “self-reinforcing” processes: a power-law or exponential distribution. These findings stand whether we look at individual counties within death-penalty states, across the 50 states of the United States, or look at the international distribution of executions across countries in recent years. The substantive conclusion from the statistical patterns observed is that these cannot be explained merely by random variation around some general average. Rather, localities start down a path, then are reinforced in their pathways. There appears to be little to no logic about why certain counties are the high-use counties, whereas the vast majority have never executed a single individual in 40 years of experience with the modern death penalty, often in spite of thousands of homicides. Our research indicates that a main determinant of whether an individual will be executed is not the crime they commit, but the jurisdiction’s experience with executing others. 
  • ABSTRACT: Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. In the following Essay, we present the results of a case study in Durham, North Carolina. We scrape data portraying daily pretrial conditions set for individuals from the Durham County Sheriff’s Inmate Population Search website and details the individual’s name, charges, bond type, bond amount, court docket number and time served. Beginning in early 2019, the judges and prosecutors in Durham, North Carolina, adopted new bail policies, reflecting a shift in the pretrial detention framework. This Essay provides a firsthand look into the pretrial detention data following these substantive policy changes. Our observations serve as a reflection on how the changes in Durham reflect broader pretrial detention reform efforts. First, we observe that a dramatic decline in the jail population followed the adoption of these policy changes. Second, we find that the policy changes corresponded with changes in aggregate conditions imposed pretrial. We describe, however, why public data that simply reports initial pre-trial conditions cannot answer additional questions concerning the jail population or outcomes for the released population. Nor can this data fully answer questions concerning which actors can be credited with the observed changes. During a time in which jail populations are a subject of pressing public concern, citizens have inadequate information, even in jurisdictions with public jail websites, to assess policy. We conclude by discussing the implications of data limitations for efforts to reorient bail policy.

Book Chapter

  • ABSTRACT: This chapter provides a brief overview of the relationship between COVID-19 and mass incarceration in three parts. First, I explain how COVID-19 has affected pre-trial detention policies and prison release policies across the United States. Using data from the NYU Public Safety Lab and Marshall Project COVID in Prisons Dataset I show how pre-trial detention (jail) populations and state prison populations changed during COVID- 19. This data shows that while there were meaningful decreases in the prison and jail population, these decreases were generally small in magnitude. Next, I show how mass incarceration affected COVID-19 spread in the United States. I estimate the differences in likelihood of contracting COVID-19 in state or federal prisons as compared to the likelihood of contracting COVID-19 outside of prison, demonstrating that inmates are far more likely contract COVID-19. Finally, I explain how America’s racialized mass incarceration contributes to the racial inequality in the effects of COVID-19.