Oct 29, 2026 Jessica M. Eaglin
The criminal justice system is rife with junk forensics. From bitemark comparisons to firearm examinations and more, police and prosecutors secure arrests and convictions by presenting numerous techniques and methodologies as scientific though the techniques lack indicia of reliability that are the hallmark of science. While legal scholars and policymakers make headway to contain or eliminate such practices in criminal trials, new techniques emerge in clandestine ways throughout the criminal process. Professor Christopher Lau illuminates this development in his recent article, Shadow Forensics: 911 Uncovering 911 Call Analysis. Because his piece imagines the implications of forensic evidence beyond the scope of individual trials, this article is a must read for anyone interested in the juncture of science, technology, and criminal law.
Professor Lau defines “shadow forensics” as the introduction of forensic evidence into the criminal process in ways that elide evidentiary oversight through judicial gatekeeping. So while much research considers the concerns of “junk” forensics, meaning the techniques and methods used to secure criminal convictions that lack indicia of scientific support, this article identifies an overlapping but distinct concern. Even if there is consensus on how to identify junk forensics, the way that evidence enters the criminal process is increasingly obscured. This development undermines efforts to reduce junk forensics in the criminal process.
Professor Lau uses 911 call analysis as a case study to demonstrate his point. 911 call analysis is a technique to analyze 911 calls to determine if the person calling the police for help is actually the culprit of an underlying offense (e.g., the person who killed a victim is the person who called the police). A retired FBI Agent and a retired police officer developed this technique. Together, they have published several studies and a book, and developed a predictive risk scale called COPS (the Considering Offender Probability Scale) to educate and endorse identification of culprits through 911 call analysis. Yet the results of their studies are not replicable. Indeed, one of the technique-creators explicitly recognizes that the technique is not reliable enough to pass muster in a courtroom. As an AI firm developed on the technique underlying 911 call analysis explains, this is some “Trust me, bro science.”
Yet as “trust me, bro” forensics, the technique can influence the criminal process even if its creators never serve as expert witnesses in the courtroom. Professor Lau identifies three distinct entry points for the 911 call analysis technique into the criminal process. First, police trainings hosted by police departments allow technique-creators to expose officers to the “gospel” of 911 call analysis, which later influences police work. Second, courts often credit “police expertise” without evaluating the substance of an officer’s training or proficiency in specific subject matters, including on matters of 911 call analysis and linguistic statement analysis. Third, prosecutors introduce the tenets of call analysis through lay witnesses like 911 call operators while avoiding direct mention of 911 call analysis as a specific technique. These examples demonstrate the nature of shadow forensics more broadly: alternate pathways beyond the formal introduction of scientific evidence allow unreliable methodologies to shape criminal law’s administration.
Shadow forensics present problems for law and society. For society, the 911 call analysis case study demonstrates two concerns. First, the technique downgrades the credibility of 911 callers in conveying their lived experience in the courtroom, thus producing a kind of epistemic injustice through law. Second, the pervasiveness of the technique can deepen legal estrangement of marginalized people from the police. For law more broadly, shadow forensics constrain the main legal avenue to contain junk forensics in the criminal process. As Professor Lau explains, the adoption of the reliability requirement of Daubert v. Merrell Dow, 509 U.S. 579 (1993), in the Federal Rules of Evidence, and the publication of recent reports on forensic science all envision judges doing important work to gatekeep junk science in the courtroom. Shadow forensics provides a conceptual framework to understand why judges cannot or do not fulfill this critical function. In turn, the capacity for law to contain junk forensics diminishes.
Because Professor Lau identifies a problem that can, but does not always, rear its head in a trial, he proposes solutions that do not rely exclusively on individual judges in individual cases. To be sure, he joins several scholars in urging legal improvements to facilitate judicial gatekeeping. Yet Lau goes further by looking to the literature on police surveillance technology and accountability for guidance. He urges oversight in police procurement of forensic techniques akin to nascent regulation of police surveillance technology. He also encourages litigation to compel the disclosure of such practices going forward. Though none of these initiatives would alone resolve the phenomenon of shadow forensics, they can together create an environment where contestation of such practices could occur outside the criminal courtroom. That is an important place to start.
Oct 2, 2026 Eric J. Miller
Alice Ristroph is one of our foremost philosophers of police violence. She has provided important clarity about the physical nature of “force” and its effect on human bodies, and painstakingly traced the ways in which Supreme Court doctrine has concealed or legitimized the impact of the police on, disproportionately, the bodies of Black people. It thus behooves us to pay attention when she warns that, not just the police or the Supreme Court, but now the federal government as a whole is on the precipice of a legitimacy crisis with policing and the police power at its heart.
In teasing out the police power, Ristroph asks us to consider (again) the interrelation of state, sovereignty, violence, legitimacy, and policing that have formed the core of her writings for at least the past decade-and-a-half. What she adds in her wonderful new article, The Judicial Police Power, is an inquiry into the concept of power itself.
In explicating “police,” “power,” and the police power, Ristroph provides an important counterbalance to the current emphasis on heavily normative explanations and justifications for criminal law and criminal procedure. Morality and reasons tell us only so much about the criminal law and criminal procedure; what else—what mostly—we need is a focus on power. Ristroph has been fairly explicit, over the years, about the ways in which normative legal constraints on the police have not simply failed to restrict police violence but have usually served to regularize it, reconstituting police violence as either legitimate or not-violence-at-all. Put differently, normative constraints have had little impact on the material powers to beat, kill, restrain, and confine wielded by the police and which are disproportionately directed against people of color. This discretionary, discriminatory failure of normative constraint undermines the legitimacy of the police and the Supreme Court that gives them legal cover.
Enter the police power. Ristroph argues that we should distinguish between power in general; sovereign power as an inherent, naturalistic feature of the (political) state; and the power that the Supreme Court has created and entrenched in the states (rather than, e.g., the federal government).
Begin with power—and a comparison of the concepts of power and violence. Ristroph briefly notes that, though “power” and “violence” are distinctive concepts, both are complicated and controversial concepts. (P. 11.) Over the years, Ristroph has noted the fluctuating, mutable nature of the concept of violence. A naturalistic account of violence might focus on our nature as physically embodied beings: on this view, violence is “superior physical force [used] to overcome a physically vulnerable human being.” Violence, in other words, is a means of disabling bodies. But the law does not treat violence in this naturalistic manner. Instead, the law—represented through the actions of legal officials—sometimes characterizes this overwhelming exploitation of physical vulnerability in normative terms, as legitimate or illegitimate; but sometimes in material terms as not-violence-at-all (depending upon who uses it and in what circumstances). Thus, while we can come up with naturalistic definitions of violence, state violence is decidedly non-naturalistic: what it means and what are its consequences depends upon the decisions of legal officials.
If power is the ability to inflict violence on some other person, then police constitute a central example of state power. The police are agents of the state who possess a variety of powers: to direct traffic, to issue parking tickets, to rescue cats from trees, to make arrests, and to physically overpower civilians. On this view, these powers—just because they are powers—are backed by violence. On this view, the police are the quintessential violence workers of the state, at least as concerns the maintenance of domestic order. For example, some sociologists think the police officer’s power to direct traffic is effective because backed by physical threat: the officer relies on not just the badge, but the gun as well.
This ideas of the badge backed by the gun fits with the police’s own self-understanding of the need to rely on “command presence” as the embodied, physical, personalized authority of the state in public, on the street. Command presence is the quintessentially American view of police authority. In the UK, for example, the emphasis is historically on the police as “citizens in uniform” with no additional powers than those possessed by ordinary civilians; the current translation of this vision of policing is “policing by consent.” Thus, although the American vision of the police reduces to the ability to wield violence over civilians, that view is anything but universal. But that, Ristroph might argue, proves her next point: police authority varies from place to place and time to time because it is created by discrete political entities acting through state officials.
Whether or not you think that violence is a necessary or contingent feature of the state, there is no doubt that it is a core and characteristic feature of both contemporary (and historical) policing in the United States along with contemporary (and historical) understandings of state power in the United States. In theorizing about the law and the state in the United States—and especially the police—violence should be front and center of the analysis.
Ristroph proceeds from her discussion of power in general to critique the current academic and judicial “hegemon[y].” (P. 23.) This dominant view accepts that the police power is the naturalist one that exists prior to its incorporation in any constitution and is simply “reaffirmed by that document.” (P. 23.) This sovereign power to ensure order among its subjects is, first, a power over other people ultimately enforced by violence. (Pp. 13-14; P. 21.) Second, the police power is a residual, discretionary sovereign power (P. 50), often characterized as a necessary—and necessarily unenumerated—feature of the-(political)-state-in-general: it is the power to play whack-a-mole with subjects to put down disorder whenever and wherever it erupts. (P. 58.) Third, the characteristic state officials empowered to use violence to restore (or “reproduce”) public order are the police themselves. They exercise the sort of “retail” (P. 59) discretionary power to produce order possessed “wholesale” by the states. Given that power is necessarily violent, and that it is often legitimized by asserting the (political) state’s role in preserving order, then the discretion to use power, whether retail or wholesale, entails that the violence justified by the governance needs of sovereign authority is used to justify a distinctive legal power assigned by the Supreme Courts to the states.
What is this distinctive judicial conception of the police power? First, it is posited, which means it is a discrete, historically situated, and quintessentially legal “construction of American courts.” and so differs from “pre-constitutional conceptions” of “police” and “power” in significant ways. (P. 23.) This Supreme Court concept joins “police” to “power” and presents the result as a unitary, coherent, and timeless justification of the sovereign discretion of states to use coercive violence against the domestic public. Indeed, it might be italicized as its own thing: the police power.
The Supreme Court’s discussion of the police power, Ristroph argues, is part of a legitimation project to source the discretionary power of the states to enforce order as a residual power implied by the Tenth Amendment to the Constitution. This move, she argues, redefined the police power from a power possessed by non-governmental, self-governing, local communities (P. 29) to a power possessed by government institutions, and in particular, the states (as opposed to the federal government).
The power to redefine extra-legal concepts is itself a feature of the Court’s legal power-over the rest of us, and especially legal professionals. “The Supreme Court has not just the power to say what the law is [even if wrong], and the power to say what power itself is, but also the power to be believed.” (P. 10.) In other words, the Court determines, not only what reasons are legally significant, but also what facts. In creating doctrine, part of the Court’s legal power is to transform that doctrine into a story, not just about legal rights, duties, and powers, but also the source of those rights, duties, and powers in morality, politics, or history. Legal officials (including lawyers) must act as if these stories are true so that the Court will endorse their arguments as legally effective. Here we have the carrot and the stick: but remember, the Court’s inducement-power is ultimately a coercive power. It is the power to entrench a story about history, including the history of the law, as legally authoritative, or else.
By redefining the police power, the Supreme Court transformed the objects of “police”—“low-level” “inconvenient, unhealthy, or annoying behavior.” (P. 26.) Prior to the Court’s intervention, “police” need not involve the criminal law or some particular type of government official, and “was not strictly associated with a particular subject matter or method of regulation.” (P. 33.) The Supreme Court re-sourced “police power” from local, self-governing communities (P. 31) to “the states.” And the Supreme Court reconstituted these disparate governmental powers possessed by local communities into a particular type of power: the police power.
In adopting the definite article, Ristroph argues, the Supreme Court accomplished additional, important, and historically situated “epistemological work.” The Court reconstituted the police power as an “enduring” method of enforcing order that the Court could claim existed both after and before the Civil War, and which limited the impact of the Reconstruction Amendments. (P. 45.) The Court’s redefinition of the police power was thus a judicial power-grab to assert its jurisdiction over the political governance of the states. The Court then used its power to resist Congress’s attempts to assert federal jurisdiction over local governance—including the state and municipal apparatus of law enforcement—to protect Black people from white violence.
Ultimately, Ristroph reminds us, the Supreme Court’s story about the police power rests upon a claim about sovereignty and order: that the police power located, via the Tenth Amendment, in the states is the same as the sort of sovereign discretionary authority to respond to disorder that inheres in the political state. Ristroph has elsewhere devoted a great deal of thought to politicized conceptions of order as the underpinning function of both the criminal law and its enforcers. Moralized crime-fighting is a proxy justification for the infliction of violence required to enforce order. So far, the Supreme Court’s permissive, Tenth-Amendment-unenumerated-powers-of-the-states path mostly delegates to state and municipal agents the task of responding to disorder with violence. However, Ristroph points out, the Court could change its story—it’s been doing that a lot recently—and go down the political-state-sovereignty path. Doing so, Ristroph notes, could provide a justification for a national law enforcement institution delegated the power to use discretionary violence as permitted by the Supreme Court—in other words, through a bunch of doctrinal “safe harbors” that protect the police from oversight, justified as necessary expressions of the police power to “restore order.”
Ristroph’s worry is that the Court will continue to enforce the order of white supremacy by once again changing its story, this time to prevent the states resisting the federal government’s definition of “emergency” and “disorder,” so as to legitimize a federalized law-enforcement task-force to restore “order” through violence. The result would be a federalized law-enforcement agency (ICE) on the streets (and, she could have argued, state National Guards mobilized under the control of the President) granted sovereign, unenumerated emergency powers, threatening a national “collapse into authoritarianism.” (P. 61.)
This result presents a significant challenge for (especially Fourth Amendment) law, given the ways in which normative (legal) power cannot actually prevent exercises of material power. Normative power operates by telling people how they ought to use material power and telling people how they ought to treat those who misuse their material power. However, even if a person—a police officer, and ICE agent—has no right or duty to use material power, they still have the physical ability to use it, whatever the normative consequences. Only material power can control material power, either by opposing it or removing it. In my view, criminal procedure could benefit from much more discussion of removing it (arguably, this is the abolitionist agenda). Ristroph’s mention of resistance (Pp. 11, 61) gestures to her prior, much more detailed work on resistance, violence, and the material power of the police. For those of us who share Ristroph’s worry about the rise of authoritarianism, it is high time we paid much more attention to the police power before it is too late.
Sep 3, 2026 Alma Magaña
In Marisol Orihuela’s The Lawyer’s Quandary: Client-Center Lawyering in the Treatment Paradigm, we get an in-depth discussion about the dilemma criminal defense lawyers face when they are counseling individuals with atypical decision-making capacity. Specifically, Orihuela focuses on individuals with personality conditions who need to decide if they want to enter mandated treatment in lieu of prison. The lawyer’s role, she writes, “requires a candid and honest assessment of how best a client might achieve the client’s goals in their legal matter.” However, systemic flaws regarding accessibility to treatment for personality conditions, coupled with decision-making impairments caused by such conditions lead to an impasse. What is the lawyer supposed to say or do?
Legal ethical rules and lawyering models do not provide clear solutions. This article offers a thorough first step toward filling this gap. Further, Orihuela’s treatment of this kernel of an issue generates a much broader critique of the criminal legal system by highlighting systemic flaws and raising concerns about the fairness of criminal proceedings for individuals with personality conditions. Among the ways it does this is by demonstrating the limits of incremental reform in indigent criminal defense and by underscoring that the law and those in power consistently fail to consider, let alone accommodate, poor and disabled people.
Although decision-making capacity falls on a continuum, individuals with extreme impairments rooted in severe mental illness tend to receive the most attention. Rather than focus on this group, Orihuela instead offers a rich exploration of a much more common segment of the population: those with either an anti-social personality disorder or a borderline-personality disorder, each of which can affect decision making.
Orihuela shares an example of a woman who vacillates between wanting to enter mandated treatment to avoid prison and wanting to avoid treatment for fear of severe punishment if she fails. The trajectory of the criminal case for such individuals is fraught, and there are so many ways the lawyer and the system can fail them. There is the possibility the lawyer for these individuals is ignorant of these issues, doesn’t have the time or resources to figure out the dilemma, or does not understand that access to appropriate treatment for personality disorders is non-existent in the criminal system. Ethically, if the lawyer learns too much about the individual’s specific mental health conditions, they may no longer be able to advocate for them to enter treatment court. The lawyer may bypass the client altogether and decide on their behalf without consulting them first, but this raises serious ethical concerns.
In Orihuela’s example, the lawyer adheres to an ideal model of client-centered lawyering, which aims to maximize the client’s decisional autonomy. She writes, “the client-centered lawyer is not bound by a strict application of the rules, instead they prioritize the client’s authority and view the client as the best situated to make the decisions.” While this model originally urged lawyers to stay neutral, its more modern iteration promotes a collaborative decision-making process between lawyers and clients. But even if a lawyer can avoid limited resources, time, and jurisdictions with limited alternatives to incarceration, there is a problem. Collaborative decision-making requires that lawyers know how to counsel a client through the options the client may have and to empower them to decide among those options. Disabilities that affect decision-making can make this process challenging. Personality conditions can further make it difficult to assess the client’s ability to adhere to court-imposed conditions or understand the risks of failure. Further, even if lawyers can convey these risks clearly, atypical decision-making can also include a diminished ability for necessary foresight. As Orihuela writes, “[i]n simple terms, people with these conditions have difficulty weighing risks and benefits of different options, and in particular have difficulty in waiting for a bigger reward when a smaller reward is initially offered.”
There are no answers to what should happen in these cases in the ethical guidelines governing criminal defense. This is a huge problem. What, then, are lawyers representing these individuals supposed to do?
Orihuela provides hope toward an answer by discussing newer lawyering modalities that are better equipped to deal with this dilemma, albeit with limitations. One modality consists of multi-disciplinary defense teams, such as holistic defense models. A second is criminal defense lawyers working alongside social workers and community and family members to help clients navigate difficult decisions.
Orihuela also argues that lawyers in these cases might need a perspective shift. The more traditional goal of minimizing incarceration may not be the best objective. Instead, she urges lawyer to have a “more expansive view of the interests that should drive the aims of representation.” She, of course, also tells lawyers that deciding which objective to pursue requires a mental health expert who can give more clarity on a client’s ability to understand available options and to abide by any necessary conditions of compliance. Only after such an assessment can a lawyer have a more expansive view of a client’s best interests.
There are, of course, limitations to multidisciplinary models of representation and more expansive views of the goals of representation. But what Orihuela offers is a resource that practitioners can now consult to explore the complications and possible paths forward for individuals with atypical decision-making caused by personality disorders. Because this issue has not been covered by the literature, this article is a significant contribution.
Orihuela’s exploration of this problem also raises two important questions that should make lawyers consider what are we doing here?
The first question is whether it makes sense to have a criminal legal system in which we punish individuals who have a disability described as an “enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” What is the goal of imposing criminal punishment on an individual who fits this description?
This leads to a second quandary, highlighted by Orihuela and explored by other scholars: how can decisional autonomy be real when there are systemic flaws that leave individuals charged with crime with no real options? If neither improved lawyering models nor legal ethics guarantee a decision we should trust, then maybe this system is irreparable, and we need to start over.
Jul 21, 2026 Sheldon Evans
Puerto Rico is more than a territory; it is a mirror that reflects American values of sovereignty, race, and exclusion. Professor Emmanuel Arnaud explores these values in a powerful project that considers how criminal justice in Puerto Rico tells a distinct story about colonialism, federalism, and prosecutorial power that resonates far beyond the shores of the Caribbean. In Colonizing by Contract, Arnaud describes the nuances of Puerto Rico’s perpetual purgatory between territorial status and statehood, and how federal and local law interact to create a unique exceptionalism in criminal jurisdiction on the island. In Arnaud’s words, these realities ultimately tell “a story about how the most powerful democracy on earth continues to perpetuate a colonial system that delegitimizes local authority and deprives Puerto Ricans of democracy and self-determination.” (P. 2252.)
History serves as a foundation to Arnaud’s analysis, starting with the United States’ imperial acquisition of Puerto Rico in 1898 after the Spanish-American War. As a territory, the island was subject to federal oversight similar to other territorial lands that the country had acquired throughout its history. Congress enjoyed plenary power over these territorial lands until they were deemed eligible for Congress to confer the sovereignty, political representation, and rights of statehood. But unlike the Northwest Territory, the Dakota Territory, Hawaii, and Alaska, Puerto Rico was never put on the pathway to statehood. One of the foremost reasons for this exclusion was racial. Congress had consistently required that these territories meet a certain threshold of White residents before they were considered eligible for statehood. Undoubtedly, this practical threshold was rooted in White supremacist logic, which reasoned that White residents were necessary to serve as voters and leaders before Congress could entrust that territory with the privilege of joining the Union as a sovereign state. In the Insular Cases (a series of cases decided by the Court during the turn of the twentieth century), the Supreme Court established that places like Puerto Rico could be held as territories in perpetuity. This meant that the island, and its mostly non-white Latine population, could be subject to the plenary power of Congress indefinitely. Thus, the sovereignty and political representation that statehood would bring was legally out of reach. For legal historians, this should come as no surprise. During the same time the Court was separating people and determining their political rights on the basis of race—including Chae Chan Ping that upheld Chinese exclusion (1893), and Plessy v. Ferguson that justified the separate but equal doctrine (1896)—the Insular Cases (1901-1922) continued this racialized trend of exclusion and second-class citizenship.
This history leads us to the titular theme of Arnaud’s thesis: this odd form of territorial exceptionalism has manifested into neocolonialism by way of contract. Over the years, Congress has used its plenary power to allow Puerto Rico some semblance of statehood. For example, it has its own constitution, its own civil and criminal code, its own law enforcement apparatus, and its own court system. However, federal power reasserted itself in 2010, when Puerto Rico entered into a Memorandum of Understanding (MOU) with the federal government. This MOU governed many aspects of criminal jurisdiction on the island by establishing nearly exclusive federal jurisdiction to prosecute a number of firearm crimes, drug trafficking, carjacking, bank robberies, and sex abuse cases. And while Puerto Rico voluntarily entered this agreement, we also have to consider whether both parties to this contract really had equal bargaining power.
On the one hand, the MOU is an example of criminal federalization that is familiar to many on the mainland. When the island was going through a rise in crime in the 1990s and 2000s, the federal government stepped in with the purported solution of the MOU as a way of helping Puerto Rico regain control over public safety. Arnaud deftly cites scholars from the 1990s who saw similar patterns of federalization of crime across the nation, when cooperative federalism reigned supreme to counteract the rise in crime of the 1980s and 1990s. But on the other hand, the MOU also serves as a powerful reminder that Puerto Rico’s police power does not come from its own sovereignty, but from the federal government’s plenary supervision that is rooted in an imperialist rationale.
Increased federal prosecution of local crimes has brought a host of practical issues that threaten Puerto Rican’s rights in ways that go beyond theoretical themes. Puerto Rico’s constitution prohibits wiretapping, pretrial incarceration for more than six months, and the death penalty. However, these constitutional protections have been stripped for many defendants subject to expanding federal criminal prosecutions on the island. Arnaud also recognizes that bringing these cases into federal court impacts defendants’ right to be judged by a jury of their peers. Federal courts in Puerto Rico require English proficiency to serve as a juror, which is something that 85% of the residents do not have as Spanish speakers. Further, there is a racial and class divide in this English requirement because mostly White, wealthy Puerto Ricans enjoy bilingual educational opportunities. Arnaud also raises the significant political problem whereby the island’s residents do not get to elect federal representatives. While Puerto Ricans are U.S. citizens by birth, they are denied the right to vote for the President of the United States and have limited representation in Congress (with a non-voting delegate). Just as our American founders revolted against an overbearing imperial government that taxed them without representation, America has become the new imperial power that is willing to impose even more problematic policies on Puerto Rico without representation in Congress. Arnaud also shows that these practical problems are more than mere speculation using data from on-the-ground interviews he conducted with Puerto Rican practitioners. There are real impacts whereby a modern version of federal plenary power is being reasserted in an area of law that cuts to the heart of Puerto Ricans’ liberty.
Arnaud’s thesis is compelling and aligns with my own research on criminal justice and the costs of cooperative federalism. Federalism, at its roots, is meant to be a diffusion of power between federal and state governments to prevent either sovereign from threatening individual liberty. Therefore, if the federal and state governments cooperate in ways to maximize punishment and minimize the rights of criminal defendants, then cooperative federalism turns into cooperative tyranny. Puerto Rico’s never-ending subjection to federal plenary power—as recently illustrated in the MOU—is cooperative federalism on steroids. In this case, there is no separation between federal and state actors; instead, the power of Puerto Rico’s prosecutors and police are mere extensions of federal power. Arnaud refers to this as a form of territorial federalism, which is even more problematic because people in the territories do not have the same political tools to protect its citizens from an overbearing federal government. Apart from its interesting overlaps with cooperative federalism, Arnaud’s work also evokes similar constitutional considerations that others have explored regarding Native American sovereignty. These territories also tell a unique story of federal and tribal sovereignty that does not illustrate a federalism relationship, but rather of a structural subordination of these lands and the second-class citizenship of their inhabitants.
As we celebrate the 250-years of this country’s political experiment, we must also realize that it coincides with the 125-year anniversary of the Insular cases. Consequently, Arnaud’s contribution studying the criminal jurisdiction of the U.S. territories should not be regarded as a niche subject; rather, it is the type of scholarship that highlights latent truths about our country’s continued commitment to practicing imperialism, upholding second-class citizenship, and using criminal law to assert political sovereignty. As it turns out, the age of imperialism is long from over, and it will not end until America loosens its hold over its territories to allow them to determine their own destinies.
Jun 22, 2026 Christopher Slobogin
In Criminal Justice in Divided America, David Sklansky argues that populist democracy has been a significant cause of our criminal justice problems and that those problems, in turn, are largely responsible for the continued degradation of American democracy. But he also contends that, if properly defined and implemented, democracy can end this vicious cycle and help remedy both sets of failures.
Those failures are well known. On the criminal justice side, police and prosecutors abuse their authority, plea bargaining has replaced jury trials, crime rates remain constant despite exceedingly harsh sentencing dispositions, and communities of color unfairly bear the brunt of the system’s dysfunction. On the democracy side, we have become a seriously divided nation with seemingly intractable disagreements on a host of issues, and this polarization has, again, inflicted the most suffering on the disadvantaged. Sklansky’s contention is that application of the right democratic principles to policing, adjudication and punishment can not only improve criminal justice but also help reconstruct a healthy democracy.
On Sklansky’s account, our current political disarray can be traced back to the 1960s and 70s’ crime wave, which the criminal justice system not only failed to staunch but actively exacerbated through multiple police shootings that triggered what came to be called “race riots.” Many others have noted that during this period Republicans, beginning with Goldwater, used crime as a wedge issue and that Democrats soon joined the tough-on-crime chorus that has led to the ill-advised mass incarceration policies we have today. But while the left has since backed off the strident rhetoric, Sklansky asserts that the political right, all the way through to Donald Trump, has continued to trumpet criminal armageddon memes in election campaigns with the thinly veiled goal of othering Blacks and Latinos, and that this strategy—more than any other single phenomenon—has created the cultural and political chasm we have today.
While Sklansky thus blames democracy for both our broken criminal legal system and our broken political system, his target is a particular brand of democracy. Political scientists have identified a number of democratic variants, among them populist, participatory, deliberative and pluralist. Relying on this literature, Sklansky points out that many people today—scholars and laypeople alike—think of democracy in terms of “popular sovereignty,” the idea that the majority’s will should generally rule and that restrictions on that sovereignty compromise democracy. To Sklansky, it is this popular sovereignty strain that is the driver of our political shambles. He distinguishes both popular sovereignty and its authoritarian offshoot embodied by Trump from “democratic pluralism,” which prescribes a system that allows “a diverse society to govern itself peaceably and equitably.” The goal under democratic pluralism is not to follow the desires of the majority—which is rarely unified on the details of policy and can shift dramatically depending on events and information flow—but rather to ensure that particular processes are followed. Those processes include not only free and fair elections and adherence to norms endorsing the rule of law but also the full participation of the polity through legal institutions and “interest groups” of all types, including those based on identity and composed of people who have committed crimes. At the same time, Sklansky resists the recently popular notion that criminal justice policy should be dictated by local “communities,” because the most vocal people in the community may not always represent the diverse views of its members.
At the meta level, Sklansky’s version of democratic pluralism leads him to reject both penal populism—which he believes exaggerates the public’s punitive attitudes—and activist-based counter movements such as the Defund Police and Abolish Prisons campaigns—which he thinks take insufficient account of the public’s legitimate concerns about crime, concerns that are just as strong among people of color as they are among the rest of the polity. Implementing that view, Sklansky makes a number of specific proposals which he believes will enhance pluralism in the criminal legal system and, through those improvements, the well-being of our democracy. He also asserts that most of his recommendations could be accepted by both sides of the political aisle, because they avoid the public safety v. anti-racism agendas that make consensus so difficult. While many of these proposals were floated long before the publication of Criminal Justice in Divided America—including by Sklansky himself in his book Democracy and the Police, published almost 20 years ago—his framing of them as means of promoting democratic pluralism allows us to consider them in a new, refreshing light.
The proposals are fleshed out in four chapters entitled Police, Prosecution, Adjudication, and Punishment. In the policing arena, Sklansky argues for an expanded approach to community and problem-oriented policing, transfer of non-criminal functions to other agencies, transparent systems for holding police accountable, tracking of problem officers, use of body cameras, and increased emphasis on diversifying police forces, all initiatives that should be relatively uncontroversial (although he also argues for an end to qualified immunity, which is decidedly less so). With respect to prosecution, he suggests that imposing constraints on prosecutorial charging and plea bargaining power by reducing trial penalties and draconian sentences, while simultaneously bolstering public defender services, would be welcomed by the left and the right, especially given current enmity toward progressive as well as traditional prosecutors and today’s heightened concerns about the human and fiscal costs of mass incarceration. By helping to rejuvenate the jury system, curbing prosecutorial ability to coerce pleas should also further the pluralist agenda at cases that go to trial. Other means of doing so, Sklansky suggests, include limiting exclusions from jury service (including exclusions aimed at the formerly incarcerated), ending peremptory challenges, giving grand and petit jurors more authority to ask questions, informing juries about potential sentences, and selecting judges through commissions rather than direct elections. Finally, all of this could also help curb excessive and racially-biased punishment, as could the expanded use of community-based restorative justice approaches and increased opportunities for probation, parole and clemency (the latter perhaps granted through a jury process).
Again, the innovation of this book is not the proposals it proffers, which have been seen before, but the prism through which Sklansky views them. For him, the overall goal should be choosing criminal justice reforms that promote integration of every component of society, a society which he emphasizes consists not of a majority and a minority but of “many minorities.” Achieving that goal, Sklansky argues, should help defang attempts to use crime and the criminal legal system as populist weapons to divide us and instead provide a forum for acknowledging the diversity of views in the United States.
May 21, 2026 Aya Gruber
Not a day goes by without someone remarking that social media is a “cesspool.” The internet overflows with misogynist, anti-LGBT, racist, fascist, and even openly genocidal sentiments, some coming from the highest reaches of government. Snarky male right-wing influencers edgelord over popular discourse, claiming to say the bigoted and cruel things that “everyone is thinking.” Still, there has been something conspicuously absent from this execrable miasma: “smut”—that is, commercial sexuality, sexual imagery or just nudity, and sexual remarks. On Parler, which has served as a clearinghouse for far-right and neo-fascist ideology, one can post effusive praise for Andrew Tate and his pro-rape female-slavery agenda, but one cannot post a topless photo of a feminist protesting the shirt-wearing double standard.
Free-speech-absolutist platform Parler’s prohibition of content involving “nudity” and “explicit adult material or language” is one of myriad examples of the “sexual safety” default in online regulatory governance explored by Brenda Dvoskin and Thomas Kadri in their consequential article, Safe Sex in the Age of Big Tech Feminism. Now, sex exceptionalism in media regulation is hardly a modern phenomenon. In the traditional movie-rating context, one could always more easily see bodies being riddled with bullets than bodies coming together in sexual activity. Nor is it a novel question whether the agenda of broadening the reach of criminal law over sexual conduct is a “feminist” one, having been debated since the famous 1980s “sex wars” between anti-pornography and sex-radical feminists. On that debate, Kathy Abrams and Brenda Cossman provide excellent accounts, or one can go back to a classic book on the topic, Carole Vance’s edited collection, Pleasure and Danger.
Still, Safe Sex provides something new and desperately needed: a meticulous accounting of the complicated regulatory infrastructure governing sex in cyberspace and how its web of privileges and punishments reflect and reinforce certain ideas about sexuality and gender. The past decade has seen legal reforms addressing technology-enabled sexual misconduct—and conduct—amass at a dizzying pace with relatively little criticism outside of the civil libertarian free-speech arena. And, as the Parler anecdote suggests, the freest right-wing free-speakers have offered limited resistance to sexual censorship.
A crucial intervention in itself, the article catalogues the plethora of laws and policies that control sexual expression primarily on social media, but also interestingly on dating apps, where one might presume—wrongly, according to regulators—that sexuality is presumptively part of the experience. The regulatory web includes platforms’ self-imposed restrictions, administrative limitations, civil causes of action, and felony criminal laws. The array of regulated behaviors ranges from posting nudes and explicit sexual conversation to intentional harassment and child pornography. Because the regulatory scheme has tended toward overbreadth, whether due to bureaucratic creep, sex-regulatory creep, or fears of bad men exploiting “loopholes,” it does not just prohibit and punish uncontroversially harmful sexual conduct but functions to discipline the meaning of sexual communications in contested areas. In this way, online sexual regulation has produced culture, a gendered and gender-binary sexual culture.
In addition to creating and managing sexual culture, the authors argue, the online sexual-safety movement reinforces individual discipline as the default legal mechanism to address sexual harm and risk. When experts, activists, tech companies, and viral posts identify new or newly interesting sites of sexual harm and discomfort, proposals for new crimes shortly follow. Advocates moreover tend to champion easy-to-prove laws that give police and prosecutors the necessary “tools” to fight the identified problem, secure in their faith that these state actors will judiciously apply their newfound carceral power to the “real” bad actors. Thus, the problem of “revenge porn,” is publicized as hateful men widely disseminating nude photos of women for the express purpose of ruining their lives, but it spawns laws against “nonconsensual intimate image distribution” (NCII), which criminalize the disclosure of a nude image to any other person. Far from requiring the specific intent of revenge or harassment, the crime often does not require the defendant to know that the person depicted did not consent to dissemination. At the same, as Andrew Gilden has argued, limitations on what counts as a “private” image worth protecting effectively gives a pass to bad actors whose very goal is to harass and harm LGBT people and sex workers by disseminating their ostensibly “public” sexual images.
Or consider the cyberflashing laws created to criminalize unwanted “dick pics.” They tend to be broader than their IRL public lewdness counterparts—themselves a legacy of the vagrancy and vice-policing era—which often require the element of causing or intending to cause alarm. The authors note that in Texas, it is a crime to send a nude photo at all, unless the recipient has already expressly consented to receiving it. This makes texting a racy picture to a lover a crime even when the sender reasonably believes the recipient wants the photo, and even when the recipient does want it. The impetus behind this unusual substantive strict-liability law?: the high-profile founders of the “feminist” dating site Bumble thought it was a good idea.
In the cyberflashing example, “girl-boss” feminists’ presumption that female sexual agency requires the absence of male sexual prerogative created a real criminal law—one which ironically has the potential to punish girl bosses in the commercial sex industry who send unsolicited advertisements. Perhaps this is why Dvoskin and Kadri label the entire online sex-regulatory web “Big Tech feminism.” To be sure, the idea that male sexuality and even male body parts are tools of female subordination has a long pedigree in feminism and feminist legal theory. But the authors admit that a range of ideologies beyond dominance feminism are also at work, including old-school moralism, the liberal fetishization of privacy, and anti-“deviance” sentiments. So perhaps a better name would be Big Tech sexual protectionism, although it hardly rolls off the tongue. Whatever the label, the article does a terrific job of showing how a range of diverse ideologies have produced a legal scheme that simultaneously offers protection from some sexual harms as it creates fertile grounds for others to flourish, protects privacy as it reinforces gendered notions of chastity and discriminatory notions of deviance, and idiosyncratically punishes individuals as it normalizes society’s stigmatization of sexualized women.
Dvoskin and Kadri assert that the Big Tech feminism at the heart of the safety zeitgeist exhibits signature characteristics, what they name “the four P’s.” The scheme is “prudish, personal, punitive, and profitable.” There is much to debate about this characterization of sexual regulation in cyberspace. For now, let me just briefly explain the “four P’s, as the clever alliteration can come at the expense of clarity. By “prudish,” the authors signal that anti-sex ideologies, both left and right, have influenced internet regulation, from conservative distaste for open female sexuality and LGBT “deviance” to feminist accounts of heterosexual sex as mostly subordination. Of course, these ideologies are distinct, and the authors take care in arguing why the feminist equation of male sexuality with danger might not be so progressive—or good for women. After all, in a culture that designates one category of people as having a weapon and another as constantly needing protection from it, who wins? In addition, the idea that sexuality is a quintessentially and inherently a private matter underlies the anti-sex-ed agenda that leaves teens to learn about sexuality from misogynistic internet porn.
The authors use the “personal” and “punitive” descriptors to highlight the tendency of many law reformers, especially those concerned with sexual conduct, to prescribe individualistic disciplinary and criminal sanctions that (often falsely) promise deterrence, rather than structural, educational, and design reforms meant to prevent harmful behavior. By “profitable,” the authors mean not so much that sexual hyper-safety is good business, but that it has become entrenched as industry “best practices” in a way that makes sense within the logic of corporate governance and profit maximization.
In the end, the article puts a much-needed spotlight on a legal juggernaut: the criminal, civil, and administrative control of online sexual expression in the name of preventing harm to women and children. Like many criminal laws, these broad reforms rode in on a discourse of monstrous unrepentant male offenders and sexually innocent female victims. But they do little to deter the worst dark-web actors who are unlikely to get caught or individuals who deliberately harm already sexualized people. In fact, it is the ideology that sexuality—particularly female and LGBT sexuality—must be remain the closet that leads bosses to fire, friends to shun, and churches to expel women whose nudes become public. And the laws’ carceral reach will not be confined to the worst of the worst. Already FOSTA-SESTA has deterred online commercial sex advertising more than child sexual abuse, effectively making sex work riskier for women. NCII laws have swept in not just revenge pornographers but sexting teens and women exposing their partners’ infidelity. Research has found that sexual content moderation targets LGBT speech. I commend Dvoskin and Kadri, two relatively junior scholars, for taking a brave and controversial stance on a politically and emotionally charged topic that too many powerful commentators insist has only one valid side.
Cite as: Aya Gruber,
Sex and Tech, JOTWELL
(May 21, 2026) (reviewing Brenda Dvoskin & Thomas E. Kadri,
Safe Sex in the Age of Big Tech Feminism, 39
Harv. J. L. & Tech. 59 (2026)),
https://crim.jotwell.com/sex-and-tech/.
Apr 23, 2026 SpearIt
When NFL star Colin Kaepernick was in the spotlight in 2016 for protesting police violence, the notion of “defund the police” was just a fledgling idea in criminal justice reform. At that time, he aligned with and amplified the Black Lives Matter movement, which had reached a zenith in the wake of George Floyd’s murder in 2020. This explosive moment put police practices under heavy scrutiny and thrust the notion of “defund” into mainstream debates on police reform. Some states have embraced aspects of the “defund” ideology, but unfortunately, have faced some unsavory consequences that produce the very problem sought to be prevented.
In (Non)Police Brutality, Shawn E. Fields explains the unintended consequences of moves to defund the police. Perhaps the most damaging of these have emerged due to the reality that non-police actors can be brutal too. The main justification for defunding the police, brutality, is sometimes one of the consequences of defunding—only now it is at the hands of EMTs, mental health workers, and other police substitutes. This paradox produces a most insalubrious outcome since civilians have less legal recourse against the acts of non-police responders, leaving victims in a worse position than if they had been brutalized by police.
The Article’s path to unveiling this paradox begins with the rise of the “alternate responder” as an antidote to police misconduct. To begin, the Article situates modern forms of police brutality within the broader context of police misconduct, noting at the outset that violence “is central to police work.” (P. 829.) Physical force, at some level, is inherent in a job that requires the seizing, searching and detaining of civilians. Hence, police misconduct builds from the raw blocks of violence, over which police enjoy a quasi-monopoly.
The brutality is not distributed evenly in society but instead focuses most severely on individuals with particular intersectional characteristics, as ethnic and racial minorities and poor people bear the bulk of brutality. The data on the racial disparities among victims of police shootings is devastating, revealing that an unarmed Black person was three and a half times more likely of being shot by police than an unarmed White person. Such findings have analogs throughout police practices, with police being more likely to draw weapons, use pepper spray, push an individual to the ground, use handcuffs, and employ other violent treatment against Black people than against White people. (P. 833.) The overall picture is one in which police brutality operates as a terrifying power that is deployed in racially determinant ways.
The problem of police misconduct and its concentration on racial minorities set the backdrop for the rise of the alternate responder. Municipalities across the country worked to remove police from the equation where possible, “replacing armed police with unarmed experts in addiction, mental health, homelessness, and other noncriminal matters…The direct motivation driving alternate response mechanisms is a desire to end police brutality.” (P. 838.) But what happens when non-police responders are the ones wielding violence?
The Article approaches this question from a Fourth Amendment perspective—and the results bode ill for victims of non-police violence. As the main constitutional restraint on police use of force, Fourth Amendment jurisprudence has shaped police practices and has been the primary legal regulation on police officers. Caselaw on police misconduct indicates that the Fourth Amendment is a weak protection against police misconduct. These scanty protections are further diminished when it comes to misconduct by non-police.
The Fourth Amendment analysis begins with the standards that guide use of police force, which the Article deems a “[j]urisprudence that facilitates violence.” The discussion includes classics like Tennessee v. Garner and Graham v. Connor, the latter of which “has worked to insulate officers from accountability while justifying heinous acts of police brutality…” (P. 843.) The caselaw sets a deferential tone for police conduct and produced the doctrine of qualified immunity, which shields officers from civil rights claims. As the Article describes, “excessive force jurisprudence does more to facilitate police violence than restrain or redress it.” (P. 844.)
While in theory, it might be reasonable to imagine that Fourth Amendment protections are more robust for victims of non-police brutality, the exact opposite is true. The Article highlights how the main cases that trigger scrutiny—sexual misconduct, medical personnel, and school officials—demonstrate time and again that when challenged conduct falls outside the law enforcement/investigation context, courts are reluctant to find that the non-police responders’ conduct constitutes a search or a seizure. Automatically then, such responders operate in a strange grey zone since they are capable of inflicting police-like violence but are held to an even lower standard than police.
Non-police responder cases run the gamut. There is the paramedic who pushed down a patient and forced ingestion of psychotic medication, an outreach specialist who forcibly packed up someone’s tent and pushed that person out of the park, and other examples of non-police uses of physical force. The fact that these non-consensual touchings “are both not as invasive as rape and not conducted by police officers only further compels the conclusion that courts will not apply the Fourth Amendment to them.” (P. 853.)
The Article concludes that courts should view non-police brutality as an unreasonable seizure and the subject of Fourth Amendment protections, what it describes as a “target theory of Fourth Amendment seizures.” This approach redirects the constitutional inquiry away from government actor who commits the violation and considers the objective intrusion into a person’s bodily and liberty interests: “This approach removes justiciability issues inherent in divining the intent of government actors and allows courts to more easily and consistently apply the Fourth Amendment to clear cases of excessive force.” (P. 880.) Thus, the turn to non-police responders, though a welcome change, is one that must be approached cautiously, and “rules governing these alternate responders must reflect the serious need to restrain non-police actors from engaging in the same violent acts as they replaced.” (P. 887.)
Apr 8, 2026 Maartje van der Woude
There is a tendency in socio-legal and criminological scholarship to approach border policing through its most visible moments: the violent encounter, the discretionary stop, the dramatic deportation, the spectacular failure or abuse. Irene Vega’s Bordering on Indifference: Immigration Agents Negotiating Race and Morality invites us to look elsewhere. Not away from power or harm, but toward the quieter, routinized, and morally ambiguous labor through which immigration enforcement is sustained day after day. It is here, Vega shows, that the U.S. immigration system derives much of its resilience, and much of its cruelty.
Based on extensive ethnographic interviews with Border Patrol agents and ICE deportation officers, the book offers a deeply textured account of how frontline immigration agents come to understand their work, their authority, and themselves. Vega is not interested in asking whether agents are “good” or “bad.” Instead, she asks a more unsettling question: how do agents learn to live with, justify, and normalize a system that produces suffering on such a vast scale?
The answer, Vega argues, lies in the cultivation of indifference: not apathy or callousness, but a carefully managed moral stance that allows agents to do their jobs while keeping moral dissonance at bay. Indifference, in this sense, is not the absence of feeling but a form of moral work. It is actively produced, sustained, and legitimated through institutional routines and legal authority.
For U.S. lawyers, this insight is particularly arresting. Vega shows that indifference is not simply an occupational coping mechanism, but a stance enabled by law itself. Legal mandates, procedural routines, and chains of authority allow agents to experience their actions as lawful even when they are morally troubling. In this way, Bordering on Indifference is as much a study of legality as it is of enforcement culture: it reveals how law operates as a moral alibi, converting ethically fraught decisions into neutral acts of compliance.
From the outset, Vega situates immigration enforcement as a profoundly moral field. Agents are not only law enforcers; they are moral actors operating within a system whose legitimacy is constantly contested. In the book’s opening chapters, she traces how agents “take the job” and “become agents,” often drifting into immigration enforcement for pragmatic reasons—economic stability, limited local opportunities, or proximity to the border—rather than ideological commitment to immigration restriction. Yet once inside the institution, agents are trained to see migration through a law-and-order lens that frames enforcement as both necessary and underappreciated.
This process of professional socialization is crucial. As Vega shows, the academy does not merely teach legal rules and tactical skills; it reshapes recruits’ moral vocabularies. Agents learn to understand themselves as enforcement-oriented professionals tasked with controlling a problem that is at once politically charged, structurally irresolvable, and deeply racialized. The result is a persistent sense of futility, of “doing a job you are not allowed to do”, paired with a strong attachment to the authority of law as a moral anchor.
That attachment should give legal scholars pause. Vega’s analysis reveals how legality functions not only as a constraint on power, but as a source of moral reassurance for those who exercise it. Agents repeatedly return to law—this is what the law requires; this is not my decision—as a way of resolving moral doubt. For lawyers accustomed to viewing legality as a safeguard against arbitrariness or abuse, the book offers a sobering counterpoint: here, law stabilizes coercion by dispersing responsibility across procedures, hierarchies, and rules.
One of the book’s central contributions lies in its analysis of Latina/o agents, whose racial and cultural proximity to migrants places them in an especially fraught moral position. Rather than treating shared ethnicity as a straightforward source of empathy or resistance, Vega shows how it becomes a resource for governance. In a key chapter, she introduces the concept of “caring control” to describe how some Latina/o agents use cultural familiarity, language, and courtesy to humanize enforcement encounters without altering their punitive outcomes.
Caring control, Vega argues, is not a contradiction but a technique: a form of soft coercion that improves compliance, reduces friction, and allows agents to see themselves as humane actors within an otherwise harsh system. Crucially, this humaneness does not disrupt the machinery of deportation. Instead, it stabilizes it, benefiting both agents, who can preserve a sense of moral worth, and the state, which gains legitimacy through a diverse and ostensibly compassionate workforce. Not all agents adopt this approach. Others embrace what Vega calls “disinterested professionalism,” insisting on neutrality, equal treatment, and emotional distance. Yet here too, the outcome is the same: the smooth reproduction of enforcement. Whether through warmth or detachment, the system moves forward.
The book’s analytical core emerges most forcefully in its chapters on moral ambiguity, denial, and legitimacy. Vega takes readers into moments where the moral scaffolding of enforcement threatens to collapse: the family apprehended in the desert, the father who begs to be released, the agent who recognizes himself in the migrant standing before him. These encounters generate what Vega calls “moral emotions” (sympathy, guilt, shame) that run counter to the enforcement mission.
What happens next is telling. Rather than producing resistance or refusal, these emotions are managed through denial. Agents deny responsibility (“I’m just enforcing the law”), deny harm (“I’m not hurting anyone”), or deny victimhood (“they chose this”). For legal audiences, this analysis resonates well beyond immigration enforcement. The familiar appeal to legality mirrors doctrinal and institutional logics that insulate individual actors from responsibility by locating agency elsewhere. In statutes, executive priorities, or bureaucratic necessity. Vega shows how these logics operate not only in courtrooms or policy debates, but in the everyday moral reasoning of frontline officials. The result is a system in which harm is legally authorized yet experientially disowned.
The final chapters extend this analysis to questions of legitimacy. Immigration agents, Vega shows, experience their work as morally tainted. They feel misrepresented by the media, criticized by the public, and—especially for Latina/o agents—accused of betraying their communities. In response, agents engage in active legitimation work: reframing deportees as criminals, invoking sovereignty and legality, and comparing U.S. enforcement favorably to that of other countries. Vega situates this frontline moral labor within broader political shifts. While changes in presidential administrations may alter enforcement priorities, they do not fundamentally disrupt the moral economy of immigration control. What remains constant is the everyday work of agents who translate abstract legal mandates into lived realities, often beyond the reach of public scrutiny or judicial review.
Bordering on Indifference makes several vital contributions. Empirically, it offers rare access to a closed and defensive institution. Theoretically, it advances our understanding of how morality, emotion, race, and legality operate together within bureaucratic power. Normatively, it resists easy judgments, forcing readers to confront the unsettling possibility that cruelty is most effectively sustained not by hatred or excess, but by professionalism, care, and moral distancing.
For U.S. lawyers in particular, Vega’s book offers a critical intervention. It challenges comfortable assumptions about the redemptive force of legality and raises difficult questions about responsibility, discretion, and accountability in administrative systems. It reminds us that some of the most consequential legal harms are produced not through overt illegality, but through ordinary compliance with law.
In an era where border violence is increasingly visible across the globe, Bordering on Indifference reminds us that the durability of the immigration system lies not only in walls and weapons, but in the everyday moral accommodations that make exclusion feel lawful, necessary, and ordinary.
Mar 25, 2026 Ji Seon Song
Over 3.6 million people are on some form of community supervision of either probation or parole. This is almost double the number of people incarcerated in juvenile facilities, jails, and prisons. The alternative to incarceration has now become its own beast, leading to the new coinage of mass supervision or mass probation. The problems with mass supervision and mass probation are many, as scholars have noted. Supervision in the community net-widens. It replicates and perpetuates racial inequality. Community supervision does not lead to a life free from the criminal legal system. Instead, people who are sentenced to probation and parole often cycle back into incarceration. Probation and parole expand the carceral footprint and do so in ways that infringe on the privacy, liberty, and dignity of lives, while also expanding law enforcement capabilities.
These criticisms implicitly include the actions of the agents of community supervision—probation and parole agents. But is there more to probation and parole than just supervision? As routine, embedded institutional actors who operate at the nexus of law enforcement, rehabilitator, counselor, and adjudicator, what other kinds of harms do they produce? This is where Renagh O’Leary’s work comes in. In the “new penology” described by Jonathan Simon and Malcolm Feeley, with its emphasis on risk management and control of those deemed dangerous, the agents of community supervision are important arbiters of risk management and assessors of dangerousness. In two articles, Supervising Sentencing and Ideological Testing, O’Leary delves deeper into the processes of community supervision agents, looking beyond their purely supervisory functions. Each article is noteworthy for its individual contributions, but reading them together reveals additional insights and implications. O’Leary’s work uncovers probation and parole agents as important ideological actors contributing to the “ideology of criminal procedure.” These principles of criminal procedure frame the cultures and interactions between the criminal justice actors and the public, constituting “a set of ideas and assumptions that undergird the operation of the criminal process and legitimize the status quo.”
To make her arguments, O’Leary, a criminal law and procedure scholar, has amassed an impressive dataset of 200 internal probation policy documents, including standardized questionnaires, templates for presentence reports, and agency policies on presentence investigations and reports. She also draws from a collection of risk assessments and completed a risk assessment training herself.
In Supervising Sentencing, O’Leary examines the process of pre-sentence interviewing and report-writing by probation officers. Probation officers in nearly all jurisdictions are tasked with preparing a pre-sentence report for the sentencing judge. The report is preceded by a pre-sentence interview where the probation officer questions defendants on a wide range of topics, aimed at arriving at a sentence recommendation and providing relevant sentencing information to the court. O’Leary highlights three facets of this pre-trial report process: topic-selection, fact-finding, and meaning-making. In carrying out these discretionary functions, probation officers can ask if family members have criminal histories and obtain broad releases for otherwise private records. After gathering information, they then interpret the facts in highly “impressionistic and subjective ways” to opine on those facts, such as in assessing the defendant’s “attitude.” These choices have an “ideological dimension,” according to O’Leary. They help imbue a “punitive perspective” at sentencing that has “deep faith in the criminal system” as one that is socially beneficial. This elevation of the punitive perspective also benefits from the probation officers’ “pretense of neutrality and helps insulate it from challenge and critique.”
In Ideological Testing, O’Leary delves deeper into the concept of the ideology of criminal procedure. She surfaces a category of questioning by probation officers and parole agents in risk assessments, pre-sentence interviews, and parole hearings that reveal what she calls “ideological testing.” The ideology of criminal procedure O’Leary points to in Supervising Sentencing previews arguments she fleshes out in Ideological Testing. O’Leary highlights three sites of ideological testing: presentence investigations, risk assessments, and parole hearings. She identifies questions that “test” the ideology of criminal defendants with questions like “do you think the criminal justice system is fair?” or “How do you feel about the police who arrested you?” Even as inequities and injustices in the criminal legal system are well-documented, especially for Black defendants and defendants from other racial minority groups, the “wrong” answer to these questions is interpreted as evidence of criminality, lack of remorse, or refusal to accept responsibility. At its essence, the message of these questions to a defendant is: drink the Kool-Aid even if the Kool-Aid poisons you, or suffer the consequences. These questions reinforce the punitive perspective O’Leary defines in Supervising Sentencing: “one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures.” More than that, the systematic use of these questions and assessments undermines free speech, perpetuates a kind of gaslighting by denying the defendant’s reality, and further entrenches racial injustice by disallowing criticism by defendants of the kinds of bias and discrimination that led to their arrests, prosecutions, pleas, and convictions.
O’Leary acknowledges that because her examination is limited to policies and protocols, she cannot opine on how individual officers approach cases. But in her framework of community supervision agents’ ideological work, we can see how these agents, as “street-level bureaucrats,” are yet another example of Michael Lipsky’s theory of how government workers deploy their discretion in ways that not only shape the experiences of individual defendants, but serve to legitimate perceptions of the system as a whole. Thinking about the process of ideological testing and pre-sentence investigating together reveals how they form a feedback loop for the stakeholders, producing a continuous survey confirming the fairness and legitimacy of the criminal legal process and system. This feedback loop tells community supervision agents and other criminal justice stakeholders that even criminal defendants consider the criminal legal system fair and believe that their cases did not involve bias, discrimination, the misuse of discretion, or missteps by police, prosecutors, judges, and public defenders. This message is perhaps even more potent because the perception of community supervision agents is that they are non-partisan and represent the softer or rehabilitating side of the criminal legal system.
As a former public defender and clinician, O’Leary is well-positioned to offer practical solutions. For instance, she outlines a First Amendment challenge to ideological testing in risk assessments. A separate approach she advocates for in both articles is the elimination of the identified processes of the pre-sentence interview and risk assessments. Perhaps such elimination might satisfy the issues she highlights, but I wonder whether it might be worth questioning the broader value of these community service agents and the institutions they represent, especially as more is uncovered about how much they execute managerial and behind-the-scenes functions of the criminal legal system that have wide-ranging consequences.
Ultimately, O’Leary’s work calls on scholars and advocates to think more deeply and with more nuance about the inner mechanisms of the often overlooked actors engaged in community supervision. What may appear to be the routine and inconsequential actions of these actors are actually powerful drivers of certain ideologies of our criminal legal system.
Feb 23, 2026 Jonathan Simon
In Franz Kafka’s haunting short story, Before the Law, an ordinary person (described as a “countryman”) seeks to enter the law only to discover a gatekeeper whose formidable personal presence and vague threats of even fiercer gatekeepers keep him stalled at the law’s entrance. The seeker spends his entire life imploring the gatekeeper to let him in, never daring to attempt to evade him. In the end, he comes to know (spoiler here) that this gate, from which he was denied entry, was made only for him.
Modern students of the legal system have long studied the role of gatekeepers, both the intermediaries like lawyers whose help is crucial to accessing justice, and institutional rules and norms that favor repeat players over first time users of the courts. Rarely, (but see, Nicole Gonzalez Van Cleve, Crook County (2016)), however, do we, like Kafka, explore the physical (and perhaps metaphysical) barriers to equal justice. In an important analysis of data from a broader ethnographic and qualitative interview based study of ordinary people’s experiences with accessing courts, Spatial Burdens of State Institutions: The Case of Criminal Courthouses, Matthew Clair, Jesus Orozco and Iris Zhang spotlight the spatial environments of court houses and how they contribute to complex patterns of inequality and paternalistic and punitive forms of poverty governance. The authors highlight two kinds of power effects of court spatial conditions. There is the direct effect on court users of the environment in and around the courthouse and how that can shape the emotional experience of accessing justice institutions. There is also a secondary effect when court-based burdens cause a person to have to seek additional state institutional intervention (like a person who loses their job because of the time involved in attending court hearings and must apply for unemployment or food support). Together, these create a distinctively spatial dimension to poverty governance.
The authors’ multiyear study focused on two courthouses in Silicon Valley (Santa Clara, County, California). One was the main county courthouse in downtown San Jose (the largest city in the county and one of the largest in the state in terms of population and area), which is surrounded by high-speed roads and parking lots, and lacks nearby affordable restaurants. The other was the Palo Alto branch court, which sits in a high-income area full of stores, restaurants and amenities. The authors and their collaborators undertook two years of fieldwork and multiple interviews with court users in the period following the COVID 19 closures.
One feature of geographic variation around inequality that has long been of interest to social scientists and lawyers involves spatial distance. We speak routinely now of “food deserts” to describe the way poorer neighborhoods often lack access to affordable sources of healthy food (like larger grocery stores). This consideration is relevant to the courthouse story as well. For some defendants, especially those not in custody, and for their family members, the long distance and the lack of easy public transit across the county makes the Palo Alto courthouse a special burden. Likewise, in court studies, the rural/urban divide has often been spotlighted as capturing major disparities in the resources and infrastructures of justice (courthouses, lawyers, law enforcement). But objective distance and the rural urban divide is only one dimension of geographic power effects. The authors focus on four dimensions that emerge as significant from their interviews and ethnographic observations: functional distance (objective distance plus the various barriers like transit, parking, and traffic patterns); neighborhood social life (the way the collective built and social environment may be welcoming or unwelcoming); the exterior form of the courthouse (how it appears and how it can be entered); and interior built forms (interior barriers, aids to navigation or arrival, and complexity).
While the interviews included people involved in non-criminal proceedings, the significant effects were most concentrated on those in criminal cases, and even those involved in civil matters were more affected if they were already criminalized. The qualitative research surfaces many fascinating details that will be especially interesting to those teaching clinical and practice related courses involving predominantly poor communities and to those researching or teaching on criminal courts. The authors make many surprising findings, including that in-custody defendants have an easier path to court since they are generally brought close to the courtroom for their hearings and then escorted in. Some findings are not so surprising but nonetheless important. For example, disabled people face daunting obstacles downtown in high traffic wide streets and frequently broken elevators and doorways.
Several findings struck me as particularly interesting. The downtown San Jose courthouse, as is the case with many large city downtown courthouses and in some smaller cities, is located as part of a clustering of other carceral institutions. These clusters typically include a jail, the police headquarters, and sometimes additional federal jails or immigration detention facilities. This clustering means that persons—defendants out of custody, but also witnesses, victims, family members, or jurors—must confront institutions that may trigger deep trauma from past encounters. They also face real risks of being stopped, arrested, or deported while passing by. The presence of encampments of unhoused people, one of which was present near the downtown San Jose court house during the research period, and which can be found in many downtowns, carries its own package of potential triggering experiences, most notably exposure to drug use and sales for those who may already be under some kind of criminal supervision or are in recovery from drug addiction. The logics of creating carceral clusters are likely driven by land costs and urban development planning, but have unintended consequences for those who may experience, in the shadows or all those carceral institutions, something like a “carceral citizenship.”
Interior design and scale also matter. Large courthouses (downtown San Jose has 30 courtrooms) can be incredibly confusing to those who are first time users. This is compounded by hidden front entrances, long security lines that may snake in front of a courthouse, and lack of adequate signage for finding the right court room. Those assigned to a more suburban courthouse will find the entry to the building and related access issues like parking or bike access far easier, and restaurants more abundant, but may find the differences in class and racial make-up around the courthouse alienating. Inside, courtrooms are generally poorly designed to facilitate audio or visual access by the public (and sometimes even defendants) to the statements being made from the bench, by lawyers, or by court clerks. The resulting confusion and chaotic soundscape undoubtedly contribute to a sense of dehumanization.
At a time when much interest is generated by the creation of innovative new courts for defendants who are veterans, unhoused, or in need of mental health or substance abuse treatment, Spatial Burdens is a powerful reminder that the past will live on in the built environment, both around and inside the courthouse. Until we change those, the messages being sent by well-intended substantive reforms may be muddled at best. In the meantime, too many ordinary people will remain psychologically stalled before the gates of the law.
