UCLA Criminal Justice Law Review

Judgments about the harmfulness of trial errors have profound consequences for defendants, the criminal justice system, and the public. Judges are expected to assess harm accurately, but they cannot hear directly from jurors and may only speculate about the difference a trial error made. Even experienced judges have a hard time predicting what jurors think and what juries will do. Fortunately, scientific principles and research can assist judges in conducting harmless error analysis. This Article offers a framework for testing claims about the harmfulness oftrial errors. It specifies the prosecution’s burden to prove a trial error was harmless on direct appeal as well as the defendant’s burden to prove a trial error was harmful in post-conviction proceedings. Hypotheses about the harmfulness of errors can be visualized and tested rigorously. Scientific analysis of trial errors can help courts assess the harmfulness of trial errors more accurately, efficiently, and confidently.

The environment in which an individual lives inevitably influences the life they lead. Although many social scientists, legal scholars, and judges accept that severe environmental deprivation can reduce culpability for criminal offending, sentencing outcomes in the federal system often fail to reflect this. This occurs because deprivation is not consistently recognized as a mitigating factor in non-capital cases.

Over the past fifty years, scholars have mounted a sustained effort to develop a mitigating factor that recognizes environmental deprivation experienced by defendants. On the whole, these efforts have been unsuccessful at the federal level, and have failed to gain traction among courts or legislatures. Somewhat surprisingly, none of the voluminous scholarship looks beyond the United States. This is unfortunate.

Over the past two decades, legislatures and courts in Canada, Australia, and New Zealand have successfully developed the mitigating factor that scholars have long been seeking. Each of these jurisdictions has developed a regime for obtaining valuable information about a defendant’s background and presenting it to the sentencing judge. If the judge considers that the defendant’s experience of severe environmental deprivation reduced their culpability, their sentence will be reduced accordingly.

The experiences of these Commonwealth jurisdictions are instructive and may help pave the way toward judicial or legislative recognition of severe environmental deprivation as a mitigating factor in the United States. Observing it operating successfully overseas may provide legitimacy to this mitigating factor and also assuage concerns that it might open the floodgates or undermine the criminal justice system.

With reference to the experiences in these Commonwealth jurisdictions, this article proposes a framework for obtaining information about a defendant’s background and provides a legally defined standard for determining when a sentencing reduction will be appropriate.

Every year in the United States, over 600,000 people are released from prison and over 9,000,000 enter and exit jail. Many of these individuals have complex and chronic physical and mental health conditions. The Bureau of Justice Statistics found that in 2016, forty percent of incarcerated people in state prisons reported having an active chronic health condition, forty-three percent had a history of mental health issues, and fourteen percent met the threshold for serious psychological distress. Nationally, a person with serious mental illness is three times more likely to be found in a jail or prison than a hospital. Upon reentry to their communities, many individuals are left unsupported in vulnerable positions, without health insurance or transitional medical care. The consequences for those with acute medical needs and mental health disorders—particularly those with substance use disorders—can be severe. Though countless policies, practices, and dynamics underlie this concerning status quo, this Article focuses on one in particular: the “Medicaid Inmate Exclusion Policy” (MIEP).

The MIEP prohibits the use of federal dollars to cover Medicaid expenses for incarcerated individuals. Scholars and legislators have argued that repealing the MIEP would improve the quality of health care provided during incarceration and continuity of care upon release. However,federal legislative efforts to repeal or amend the MIEP have failed. Recent state-based agency efforts, on the other hand, have had promising success. This Article surveys these various MIEP-related legislative and regulatory efforts and analyzes their potential to narrow the scope of the MIEP to improve quality of health care for incarcerated people and continuity of care upon reentry. Ultimately, this Article recommends leveraging state regulatory law to improve continuity of care as a potential stepping stone to repealing or amending the MIEP. This Article proceeds in four parts. Part I highlights the dismal state of correctional health care to provide context for incarcerated people’s health care needs during incarceration and upon release. Part II provides background on Medicaid and the MIEP’s impact on incarcerated and formerly incarcerated people. Part III discusses policy efforts at the federal and state levels to curb the MIEP’s effects through various legislative and regulatory mechanisms—namely, Section 1115 demonstration projects. Part IV hones in on the strengths and weaknesses of Section 1115 demonstration projects and concludes with high-level recommendations.

Though the United States is touted as a global beacon of equality, the Thirteenth Amendment engendered unequal citizenship through felony disenfranchisement legislation, which revokes the voting rights of convicted felons. This is a common and growing practice in the United States, as there were approximately one million disenfranchised individuals in 1976 compared to the approximate six million disenfranchised individuals in 2016. Ex-felony disenfranchisement should be prohibited in the United States, meaning felons should be restored the right to vote after the conclusion of their incarceration, parole, and probation.

Despite the social and legal resonance of fear events, fear has received little academic attention as a mechanism for creating and entrenching law in the United States. Importantly, long after the fear stimulus fades from social discourse, the law remains, sometimes in ways that are not obviously derivative of the original fear object. Consequently, understanding fear as an origin of law is of heightened importance. In this Article, we analyze various domains of law using experimental digital surveys and detailed case study analysis to unveil the fear principle that demonstrates how fear becomes law.

We examine the lawmaking potential of fear through the process of objectification. To do so, we dissect the multidimensionality of objects—the social, the tangible, and the legal—and explain how overidentification with one dimension of an object leads to a process of objectification. From there, we consider how the unique emotional capacity of fear can accelerate the process of objectification to create law. In doing so, we craft and empirically test an interdisciplinary definition of fear. Through five case studies: the 1976 Crime Wave Against the Elderly, the Satanic Panic, the Juvenile Superpredator Myth, the Creepy Clown Conspiracy, and the Fentanyl Contact Overdose Myth, we trace the objectification of fear into law and identify key elements needed for objectification to occur. Critically, none of these fear objects were real—but we argue that realness is not necessary for a wave of fear to create law. We end the Article with our theoretical contribution of the Fear Principle: an analytic tool designed to help scholars and policymakers identify the legal objectification of fear.

A theory of the provocation doctrine—labeled the “partial forfeiture” theory—is developed based on a particular understanding of the psychological process by which a defendant “loses self-control.” The interpretation this psychology would assign to each of the provocation doctrine’s elements is explained. According to this theory, when a defendant could not, due to passion, have done otherwise than form an intent to kill, he’s nonetheless guilty of murder if the state regards him as someone who does not habitually see or perceive the moral world in the way the state obligates it to be seen or perceived. The theory thus portrays the state, when state actors apply the provocation doctrine to the facts of a particular case, as making a judgment, not about the way in which the defendant judges the “moral world,” but instead about the way in which he’s disposed to see or perceive it.