Table of Contents
Articles
The State of Restorative Justice in American Criminal Law
by Thalia González
Restorative justice has been part of the American criminal justice system for more than three decades. Yet, it has only recently expanded into mainstream reform conversations—particularly those addressing mass incarceration and securing justice—and has gained a new urgency following nationwide protests in response to racial violence and anti-Blackness. Such increased attention necessitates that reformists think carefully about the existing legal landscape of restorative justice to ensure that the construction and refinement of restorative justice laws do not yield undesirable state and local practices. Drawing on a dataset of 264 laws, including statutes, court rules, and regulations in 46 jurisdictions, this Article sets forth a comprehensive empirical analysis of the legalization and operationalization of restorative justice within the American criminal justice system. Findings show that while some uniformity exists across the country, the vast majority of restorative justice laws are highly localized with significant discretion in decision-making. Additionally, given the absence of a universal definition of restorative justice, each jurisdiction must interpret what is or is not a “restorative” in its attempt to reach aspirational goals of system reform. This Article’s analysis affirms that there remain continued risks for participants (offenders, victims, and practitioners) in restorative justice processes, in part because of the significant absence of formal, state-level confidentiality protections. Results also indicate an emerging trend: the use of fees to access restorative justice (e.g., “pay to play”). In isolation, these findings would warrant consideration; however, when viewed in totality and contextualized in the contemporary social and political landscape, this study demands careful examination of the risks and benefits of the rapid legalization and expansion of restorative justice in law and policy. While current restorative justice schemes offer important alternatives to the status quo, in present form, restorative justice cannot be viewed as a panacea for all the ills that plague the criminal justice system or society at large. Rather, reformists must look to these laws as a basic infrastructure from which to begin to radically reorient the criminal justice system.
Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring
by Jason Yackee
Can universities legally employ race- and sex-based preferences in faculty hiring? This Article explores the history, law, and practice of faculty-related affirmative action, tracing its origins back to several largely forgotten legal challenges brought in the early 1970s concerning universities’ blatant discrimination against women. Since that time, universities have developed hiring schemes that are typically hidden from public view and steer certain minority and female faculty candidates into special hiring processes. These special processes, called “Target of Opportunity Programs” (TOPs), create faculty positions for which candidates are identified on the basis of race and sex and for which candidates from non-preferred demographics cannot apply. The legality of TOP searches is rarely discussed openly on campus. While some have suggested that the Supreme Court’s diversity rationale in the admissions context permits preference-based faculty hiring, this Article shows that the diversity rationale translates poorly to the context of faculty hiring. Moreover, faculty hiring, unlike admissions, is regulated by a complex system of anti-discrimination norms in state law, federal employment law, and administrative regulations that appear to tightly constrain permissible employment-related affirmative action. This Article concludes that race- and sex-based preferences for faculty hiring are problematic; they are difficult to justify under the standard diversity rationale, and they seem to violate employment law and an Executive Order governing government contractors by creating the functional equivalent of race- and sex-based set asides.
Comment
One Step Forward: Compassionate Release under the First Step Act
by Michael Doering
The federal compassionate release statute allows federal sentencing courts to reduce criminal sentences if “extraordinary and compelling” reasons warrant such reductions. Courts evaluating compassionate release motions must also consider whether the penal goals of punishment would support release of any particular prisoner and whether a sentence reduction would be consistent with the Sentencing Commission’s policy statements on compassionate release. Historically, the compassionate release statute vested authority to file compassionate release motions solely with the Director of the Bureau of Prisons.
However, the First Step Act of 2018 modified the language of the compassionate release statute, allowing federal prisoners to file motions on their own behalf. This change to the statute, while subtle, empowers district courts to independently determine whether “extraordinary and compelling” reasons warrant compassionate release. This proposition is supported by the plain text of the statute and the Sentencing Commission’s policy statements on compassionate release. Proper consideration of the penal goals of punishment will also support granting sentence reductions in a broad range of cases. Thus, the modified compassionate release statute arguably grants courts a method to begin to tackle the problem of mass incarceration in the United States.
Note
Closing the Door on Anti-Cohabitation Policies: Martial Status Protections for Unmarried Couples
by Connor Clegg
In County of Dane v. Norman, the Wisconsin Supreme Court held that a landlord’s refusal to rent to unrelated individuals did not constitute marital status discrimination. Relying on the conduct-status distinction, the court reasoned that the landlord’s policy did not discriminate on the basis of the prospective renters’ status, but rather on the basis of the renters’ conduct. The conduct at issue? Living together.
This Note argues that the Wisconsin Supreme Court incorrectly decided Norman in 1993. Nonetheless, Norman remains good law. This Note further argues that the Wisconsin Supreme Court must reexamine Norman in light of changes in statutory law, United States Supreme Court jurisprudence, and social mores. In the end, this Note argues that the Wisconsin Supreme Court should overturn Norman and rule that anti-cohabitation policies in housing and employment constitute marital status discrimination.