Coming Soon – forthcoming articles

“Data Transparency, Compounding Bias, and the Felony Murder Rule,” Mississippi Law Journal [peer reviewed forum] (Accepted 2022).

ABSTRACT—The American criminal justice system has historically and contemporaneously been plagued by racially disparate outcomes, but not all of these disparities are equally decipherable through traditional outcome statistics alone. In this work I take one specific application of the law to task: the felony murder rule. I explore new outcome data patterns in applications of the felony murder rule in order to determine what these seemingly transparent data leave out. I do this not as an exclusively empirical exercise, but also to provide context for an analysis about the role of data, the construction of categories of criminal punishment, and the function of felony murder in the justice system.

I focus this work in Illinois, a particularly notable jurisdiction for this analysis due to recent controversy in the case of Jaquan Swopes, use of the proximate cause theory of the felony murder rule, and the clear distinguishing of felony murder under Illinois code 720 ILCS 5.0/9-1-A-3.1. Using the data newly available from the Cook County Open Data Portal, I analyze felony murder rule outcomes at multiple stages in the life course of a case. I find that 75.62% of initiated felony murder rule cases have Black defendants (N=971), and only 7.01% have white defendants (N=90). This result is certainly racially disparate – but this is far from the end of the story.

I also find that felony murder charges are much less sticky than other types of serious charges. Approximately 54% of felony murder charges are dropped by the disposition stage, and ultimately, only about 13.33% of white defendants and 9.89% of Black defendants are found guilty of a felony murder charge. This might cause an observer to conclude that guilty sentences by race are relatively equivalent and therefore not biased. However, this belies the problem of disappearing charges and their impact on disparity at the macro-systemic level. Around 90.50% of felony murder charges simply do not stick through the lifecycle of a felony murder case. This is a substantially higher number of lost charges than other forms of murder, begging the question of what the felony murder category is actually doing in criminal sentencing. In this work I dissect those possibilities and consider how they interplay with the morality-based origins of the felony murder rule and their larger consequences for data transparency and bias in criminal law.

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“Learning to Listen” Types of Musical Knowledge and Genre Preferences,” (with Anna Michelson), Music and Arts in Action (Accepted 2022).

ABSTRACT— How does musical knowledge relate to genre preferences? Analysis of the 2012 Survey of Public Participation in the Arts shows that people with musical knowledge (operationalized as music lessons, music appreciation classes, and musicianship) like to listen to more genres. This is consistent with previous work on education and cultural consumption. However, we find differences between the types of musical knowledge: music lessons and musicianship strongly predict listening to almost all genres while music appreciation classes have mixed effects. Drawing on supplemental interviews, we theorize that different types of musical knowledge produce different legibilities. Sonic legibility, or the ability to evaluate intramusical elements (tone, notes, complexity), is acquired through music lessons or musicianship. Social legibility, or the ability to evaluate extramusical elements (reputation, history, symbolic associations), is acquired through music appreciation classes or through informal networks. We argue that legibility is the key link between musical knowledge and genre preferences, insofar as people report they “like to listen to” a genre when they feel they have the capacity to engage with it.

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“Public Records Aren’t Public: Systemic Barriers to Quantifying Racism,” (with Kaitlyn Filip), 113 Journal of Criminal Law and Criminology (Accepted 2022).

ABSTRACT— In a new era of computational legal scholarship, computational tools exist with the capacity to quickly and efficiently reveal hidden inequalities in the justice system. Technically, the laws exist that legally entitle the public to the requisite court records. However, the opaque bureaucracy of the courts prevents us from connecting the public to documents they technically own. We exemplify this legal ethical problem by investigating areas of law where codified protections against inequalities exist and where computational tools could help us understand if those protections are being enforced. We analyze one particular type of public data, criminal court transcripts, that is particularly disadvantaged by the current system of managerialized record retrieval. Criminal jury trial transcripts are unlike like other types of court data in that they capture rich rhetorical data about court proceedings and contain record of various process actions that are not recorded in other types of court documents. They also vary substantially from other types of court record by being indeterminately lengthy and virtually excluded from even the paid public records services currently offered by the federal public.

We argue that the current system of public records places the burden on the public when requesting the criminal jury trial transcripts that are necessary to reveal the frequency of racially motivated peremptory strikes and other sources of bias and disparity in the criminal justice system. By building a comprehensive process audit database of over 3,000 county courts, this project reveals that these theoretically public criminal records are extremely difficult to obtain due to systematic missingness, varied procedures of receipt for a legally identical process, financial burdens, and heightened required knowledge to initiate searches in the first place. This means that a relatively simple computational project, requiring only basic natural language processing, is stymied by court processes that turn accessing public records into an insurmountable barrier. 

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“Regulating Harm: Tensions Between Data Privacy & Data Transparency,” (with Kaitlyn Filip), Journal of Regulatory Compliance (Accepted 2022).

ABSTRACT— In an era of massive digital data growth, data storage and dissemination has posed complex new problems for privacy regulations across agencies and institutions on a global scale. Laws about data privacy vary substantially by country, by state, and by industry. In formulating these policies, there exists a fundamental tension between a desire for data privacy and one for data transparency. This tension becomes particularly acute as new digital tools and access technologies have made these records more accessible and connectable than ever before. This tension is borne out in the enactment of law. Three states – California, Colorado, and Virginia – for example, have enacted comprehensive consumer data privacy acts, giving individuals the right to opt out of data collection and/or providing guidelines for what and how businesses can collect and disseminate consumer information. In some contexts and jurisdictions, such as these, data privacy seems to be an uncontroversial imperative. However, in others, the imperative swings the other direction, protecting public data access.

An especially salient site of analysis for this debate is criminal records. Criminal records are not just relevant in court, though the issue of data transparency vs. privacy is particularly acute for court derivative records; these records also follow individuals outside of court and create significant obstacles for entry into employment, education, housing, and other elements of social life. Public criminal records can substantially impact an individual’s life well beyond the scope of the criminal proceeding, making a compelling normative case for keeping them private. While criminal records can be individually damaging, a closed system of court data also prevents transparent knowledge of policies and disparities. Private criminal records and court documents can substantially hinder evaluating systemic issues in the courts as a whole, making a compelling case for making criminal record data public. However, once records are public, they are more difficult to control and therefore consequences of public records are the ability of the public to use them for individual decision-making, use them for potentially discriminatory policy making, and to use them for commercial gain. The relationship between equity issues in the courts and data privacy is far from simple.

In this article we examine this tension between privacy and transparency and its consequences in several different contexts, taking criminal courts as a case study as an institution where the tension is not unique but heightened. We consider the use of criminal records as elements of a transparent court process; as tests for obtaining employment, education, or housing; and finally, the commercialization of criminal records themselves in a burgeoning terrain of digital companies providing mugshots and criminal records, connecting our criminal case study to other industries. We consider each of these three domains, laying out the universe of data privacy tensions and data transparency arguments to create a nuanced picture of how data privacy regulation interacts with public access. We conclude with recommendations, grounded in knowledge about innovative data techniques and data ethics, designed to help alleviate the tension between data privacy and data transparency.

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“The Serial Effect,” (with Kaitlyn Filip), New Mexico Law Review (Accepted 2022).

ABSTRACT— How does musical knowledge relate to genre preferences? Analysis of the 2012 Survey of Public Participation in the Arts shows that people with musical knowledge (operationalized as music lessons, music appreciation classes, and musicianship) like to listen to more genres. This is consistent with previous work on education and cultural consumption. However, we find differences between the types of musical knowledge: music lessons and musicianship strongly predict listening to almost all genres while music appreciation classes have mixed effects. Drawing on supplemental interviews, we theorize that different types of musical knowledge produce different legibilities. Sonic legibility, or the ability to evaluate intramusical elements (tone, notes, complexity), is acquired through music lessons or musicianship. Social legibility, or the ability to evaluate extramusical elements (reputation, history, symbolic associations), is acquired through music appreciation classes or through informal networks. We argue that legibility is the key link between musical knowledge and genre preferences, insofar as people report they “like to listen to” a genre when they feel they have the capacity to engage with it.

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“Justice Delayed: The Complex System of Delays in Criminal Court,” (with Maria Hawilo, Thomas Geraghty, and Meredith Rountree), Loyola University of Chicago Law Journal (Accepted 2022).

ABSTRACT— While federal and state constitutions and statutes guarantee criminal defendants a speedy trial, in practice these rights are exceedingly difficult to enforce. Felony criminal cases can be tied up in court for years. Defendants and victims return to court repeatedly but progress in resolving their cases is slow.

This Article uses unique data from Cook County, Illinois, to illuminate a complicated and path-dependent system of delay in the Criminal Division of the Circuit Court of Cook County. Our analysis demonstrates that delay is not only pervasive, but also central to how this criminal court system functions.

The Article first reviews prior work on case-processing delays. Second, the Article uses theories of path dependency to explain case delay in the Cook County criminal courts, one of the largest criminal courts in the world.  Third, the Article brings to bear a triplicate of system-wide and nuanced observational data to describe felony case-processing delays in Cook County’s criminal courts. Fourth, the Article analyzes this data, differentiating types of delays, demonstrating inertia in the face of these delays, and finally, showing how courts depend on delays to keep the system running. The Article concludes with a discussion of strategies to eliminate specific types of delays and an analysis of how the relationships between different court actors and case management will have to change to address the problem of delay.

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Recently Published

“How Culture Impacts Courtrooms: An Empirical Study of Alienation and Detachment in the Cook County Court System,” (with Maria Hawilo, Thomas Geraghty, and Meredith Rountree), 112 Journal of Criminal Law and Criminology 171 (2022).

Click to read the open access article

ABSTRACT— Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich ethnographic observations, this Article draws out a series of themes that illuminate two types of failures that characterize courtroom culture in Cook County: micro-level failures and structural-level failures. While micro-level failures may fall into the category of “mistakes,” when aggregated they impede the effective functioning of the criminal legal system. Structural-level failures, by contrast, threaten the fair and efficient operation of courts even in the absence of individual errors. This Article uses examples of real court interactions gathered through observational research to illustrate both categories of failures in the Cook County criminal courts. This Article then situates these observations in the context of legal cynicism theory to explain the impact of courtroom culture on those most directly impacted by the system. This Article concludes with recommendations for courtroom culture reform, looking for positive examples in our data and considering new possibilities for courts in the era of COVID-19.

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“Getting Jumped in Vacationland: The Complicated Rhetoric and Realities of Assault in a Small Town,” (with Andrew Burns), Journal of Qualitative Criminal Justice and Criminology (2022).

Click to read the open access article

ABSTRACT— Crime research often fails to recognize the context of small-town crime as meaningfully different from both urban and rural crime contexts. When distinctions are made, small towns remain an idealized counterpoint to problematized urban spaces. Even now, research fails to provide the detail and nuance needed to explain how complex local perceptions of small-town crime disprove the monolithic assumption of idyllic small towns. This study interrogates the disconnections between the realities of assault in a small town and the rhetorical constructions of perceived offenders. We analyze available police report data and local social media commentary to identify and explain gaps between what is known about assault in the town of Sandusky, Ohio, and related perceptions and discourses employed by Sandusky locals. We find that area residents construct their town as violent, crime-ridden, and beyond hope. Discourse surrounding fighting reinforces cynicism, seeks to levy blame, and relies on race, youth, and poverty tropes. This study constitutes a dramatic divergence from previous crime literature that considers small towns as generally less prone to violent crime than big cities and treats public perception of small towns as positive overall. We also contribute important axes for comparison between institutional and locally constructed rhetorical spaces and use theories of anomie to offer a different perspective on small-town crime.

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“Assigning Punishment: Reader Responses to Crime News,” (with Janice Nadler), 13 Frontiers in Psychology (2022).

Click to read the open access article

ABSTRACT— In this study we test how the composition of crime news articles contributes to reader perceptions of the moral blameworthiness of vehicular homicide offenders. After employing a rigorous process to develop realistic experimental vignettes about vehicular homicide in Minnesota, we deploy a survey to test differential assignments of suggested punishment. We find that readers respond to having very little information by choosing neutral or mid-point levels of punishment, but increase recommended punishment based on information about morally charged conduct. By contrast, information about the perpetrator’s immigration status caused respondents to split into two groups on whether the offense deserves neutral or increased punishment. We find that political ideology strongly influences recommendations for more severe punishment when the immigration status of the perpetrator is revealed. We argue that this difference represents a moral dimension to punishment and blameworthiness that incorporates factors outside the active offense and therefore reveals the social influence of differential reporting in shaping public perception.

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“Including but Not Limited To, Personal Injury, Disability and Death: The Problems of University Liability Waivers for COVID-19 Protections,” (with Kaitlyn Filip), 31 Kansas Journal of Law and Public Policy 89 (2021).

ABSTRACT— Over the last several decades, progressive era worker protections have gradually been stripped away or undone by new challenges: “right to work” statutes limit the ability or workers to unionize and limit their power and influence when they do, the gig economy situates more and more workers as part time independent contractors without benefits, and the minimum wage has not kept pace with the cost of living. In 2020, the COVID-19 pandemic began to exacerbate these conditions of worker precarity as workers deemed essential went to work without adequate or minimal personal protective equipment and unemployment reached its highest point since the Great Depression. The nature of work has been fundamentally altered, with remote work and workplace safety more salient than ever before.

In light of these new challenges, many workplaces have begun instituting a practice of requiring workers to sign liability waivers, indemnifying the company in the event that a worker becomes ill in connection with their job. This has become a nearly universal practice within the university context, with universities in terms beginning after the pandemic gained attention in the United States in March 2020 requiring undergraduate, professional, and graduate students to sign waivers acknowledging the risk of contracting COVID in an in-person context and affirming they will not sue the university in the event of their illness or death. In many instances, these waivers must be signed before individuals can register for classes, receive access to health insurance, or, in the case of graduate students, receive payment. These waivers are orchestrated in conjunction with university-run collection and distribution of data on the rate of COVID cases within their campuses. The data is often collected and presented in such a way to make it difficult for individuals to make a truly informed decision with respect to these waivers.

Graduate students have a unique role within the university context. They are classified as students but often paid by the university for the work that makes up the vast majority of their activities: teaching and producing research. They are not, unless recognized as such by their universities, broadly considered workers and are not legally classified as such. They also, during the pandemic, have operated within a liminal space between essential and non-essential work: doing a large share of in-person teaching and doing in-person research in labs. Graduate students, as university educators, function analogously to K-12 teachers, whose own unique conditions have been the site of deep contention between unions and school boards. In this paper, we take graduate students as a case study of uniquely situated workers who have a uniquely situated relationship to employer liability through the widespread use of liability waivers on campuses.

We find that graduate students are operating under conditions of insufficient data in order to make informed decisions about their jobs in the pandemic, that the use of liability waivers in the workplace are likely legally unenforceable and largely serve to deter utilizing collective action or lawsuits in order to advocate for more protections, and that educators are better protected by unionization and collective action. We argue, in light of the bargaining disparities between workers and companies and differentials in access to good data/information, that graduate students ought to be recognized as workers, that the practice of liability waivers ought to be banned in all workplace relationships, and that there ought to be statutory guidance on worker protections during extraordinarily unsafe conditions such as a pandemic.

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Previously Published (loosely chronological)

“Data Control and Surveillance in the Global TB Response: A Human Rights Analysis,” (with Brian Citro), 2(1) Law, Technology, and Humans 107 (2020).

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ABSTRACT— The global response to the tuberculosis (TB) epidemic is generating copious amounts of personal health data. The emerging emphasis on the use of active case finding and digital adherence technologies in the TB response will increase the amount and expand the kind of data produced and used by public and private health officials. The production of personal data in high TB burden countries, in particular, must be considered in light of their colonial histories. In doing so, we argue that interventions to eliminate TB at global and national levels are ushering in a new era of data colonisation and surveillance in the name of public health. This, in turn, raises critical concerns for the human rights of people affected by TB, many of whom belong to vulnerable or marginalised groups. We examine the normative and legal content for a set of international human rights critical to the TB response, highlighting how each right implicates the production and use of personal health data. We also demonstrate that these rights are, by and large, enshrined in the constitutions of each high TB burden country. Finally, we use these rights to analyse active case finding and digital adherence technologies to pinpoint their unique data risks and the threats they pose to the human rights of people affected by TB.

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“The Deserving Worker: Decisions about Workplace Accommodation by Judges and Laypeople,” (with Jill Weinberg and Laura Beth Nielsen), 41(3) Law & Policy 286–309 (2019).

Click to read the open access article

ABSTRACT— Employment civil rights laws require employers to make reasonable accommodations for certain workers so that they can perform their jobs. The “reasonableness” of an accommodation request should be based largely on the cost of the accommodation relative to the company’s resources, but how do people really evaluate such requests? This study examines determinations of the reasonableness of workplace accommodation requests made by trial judges and ordinary people. Using a 2 × 3 × 3 between-subjects factorial design, we test the effect of worker identity (nursing-mother worker, transgender worker, and Muslim worker) and cost on determinations of reasonableness. We find that (1) the identity category of the requesting worker impacts determinations of reasonableness by both judges and laypeople, (2) the cost of the accommodation impacts determinations of reasonableness, (3) judges are more likely to think that accommodation requests are reasonable than are laypeople, (4) there is a complicated relationship between accommodation cost and employee identity, and (5) the cost of the requested accommodation mitigates the effect of identity significantly for judges but less so for ordinary citizens. While judges are less influenced by the identity category of the employee-requestor than are their lay-counterparts, social status plays a role in determining what constitutes “reasonable accommodation.”

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“Maximizing Charges: Overcriminalization and Prosecutorial Practices During the Crime Decline,” in After Imprisonment (Austin Sarat, ed.) Emerald Publishing Limited (2018).

ABSTRACT— Criminal law has dramatically expanded since the 1970s. Despite popular and academic attention to overcriminalization in the United States, empirical research on how court actors and, in particular, prosecutors, use the legal tools associated with overcriminalization is scarce. In this chapter, we describe three forms of overcriminalization that, in theory, have created new tools for prosecutors: the criminalization of new behaviors, mandatory minimum sentencing statutes, and the internal expansion of criminal laws. We then use a unique dataset of felony filings and dispositions in Florida from 1995 to 2015 to test a series of hypotheses examining how overcriminalization influences prosecutorial practices given three changes to the political economy during this time: the decline in violent and property crime, the Great Recession, and a growing call for criminal justice reform. We find that prosecutors have been unconstrained by declining crime rates. Yet, rather than rely on new criminal statutes or mandatory minimum sentence laws, they maintained their caseloads by increasing their filing rates for traditional violent, property and drug offenses. At the same time, the data demonstrate nonviolent other offenses are the top charge in almost 20% of the felony caseload between 2005 and 2015. Our findings also suggest that, despite reform rhetoric, filing and conviction rates decreased due to the Recession, not changes in the law. We discuss the implications of these findings for criminal justice reform.

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“Economic Insecurity and the Rise of Gun Violence at US Schools,” (with Adam Pah, John Hagan, Aditya Jain, Adam Hockenberry, and Luis Amaral), 1(2) Nature Human Behavior 1–6 (2017).

Click to read the open access article

ABSTRACT— Frequent school shootings are a unique US phenomenon that has defied understanding. Uncovering the aetiology of this problem is hampered by the lack of an established dataset. Here we assemble a carefully curated dataset for the period 1990–2013 that is built upon an exhaustive review of existing data and original sources. Using this dataset, we find that the rate of gun violence is time-dependent and that this rate is heightened from 2007 to 2013. We further find that periods of increased shooting rates are significantly correlated with increases in the unemployment rate across different geographic aggregation levels (national, regional and city). Consistent with the hypothesis that increasing uncertainty in the school-to-work transition contributes to school shootings, we find that multiple indicators of economic distress significantly correlate with increases in the rate of gun violence when events at both K12 and post-secondary schools are considered.


(Header Photo: luckey_sun/Flickr/CC BY-SA 2.0)
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