As Part II details, this institutionalized deception allows states to project a strong deterrent threat and to limit the costs of incarceration. Both Republican- and Democratic-controlled states have embraced this practice for financial or ideological reasons.

Part III contends, however, that this system of sentencing deception carries substantial social costs. Because most crimes are committed by repeat offenders, the deterrent effect of inflated sentences is largely illusory. More damaging is the erosion of the criminal justice system’s credibility once the public recognizes that announced sentences do not mean what they appear to mean. As institutional trust declines, so too does the system’s normative authority to secure people’s assistance, cooperation, acquiescence, and compliance, as well as its ability to induce people to internalize its norms.

These concerns help explain the “truth in sentencing” movement examined in Part IV, including the federal Sentencing Reform Act of 1984, which requires offenders to serve at least 85% of their imposed sentences—though few states have followed suit.

The Article does not at all argue for longer prison terms but rather for greater transparency. Whatever imprisonment policies states choose, they should accurately disclose at sentencing how offenders will be punished. Greater transparency would mitigate the harms of institutionalized deception and enable more rational and informed criminal justice policymaking.

* Colin S. Diver Professor of Law at the University of Pennsylvania. As a matter of full disclosure, Professor Robinson was one of the original Commissioners of the United States Sentencing Commission, which was created by the federal Sentencing Reform Act of 1984, which also shifted the federal system to one of “truth in sentencing.” We thank Sarah Robinson for her extensive research contributions.

* Hugh Rennie is a member of the University of Pennsylvania Law School Class of 2025.

This Article surveys how what I term “contagion policing” manifests, identifies the many serious harms it causes, and offers a new policing model dedicated to achieving positive outcomes in both public safety and public health. To achieve change, both the mien and minds of police must be transformed—from the current warrior mentality to one where they see themselves, and they are seen as, guardians of both public health and public safety. A large literature demonstrates that preventive interventions produce significant decreases in crime and promote community well-being. These findings should be deployed to inform new policing tactics and strategies. With violent crime especially, intervention is needed—to hold individuals accountable, prevent future harm, and signal to the community that the behavior will not be tolerated. Police, in short, can be guardians of community health yet still invoke the coercive force of the state when circumstances require.

To ensure success of the model, a new way of assessing police effectiveness is needed. Police performance should no longer be measured solely in terms of crime control metrics but rather be tied to both improved public safety and public health outcomes. For instance, even if resorting to high-intensity arrests for minor offenses reduces crime to a degree, evaluation should take into account the significant harms the tactic causes individuals and the communities in which they live. Importantly, moreover, metrics of success should be informed by the views of community members and key stakeholders, such as clergy and businesses, who for too long have been excluded from the goals and practices of police.

Ultimately, public health and public safety must be seen as inseparably linked. Both are critically important public goods and positive outcomes for each should be the goal of policing.

* University Research Professor, Wake Forest University School of Law. Thanks to Susan Bandes, Nadia Banteka, Alyse Bertenthal, Bennett Capers, Andrew Ferguson, Rachel Harmon, Aziz Huq, Eisha Jain, David Logan, Christopher Slobogin, Ron Wright, and Bob Weisberg for their helpful comments.

Using empirical evidence from other countries that have prosecuted state officials for their crimes over the last three decades, this study sheds light on the possible effects of these prosecutions on democratic institutions and behaviors. First, it examines an in-depth case study of Guatemala, a country where this issue recently came to the fore, to develop a set of hypotheses about the democratic effects of punishing state officials. To determine whether the lessons gleaned from Guatemala are generalizable, it tests these hypotheses using the most extensive global data set of prosecutions of government officials in domestic courts, which specifically focuses on human rights prosecutions.

Interestingly, the findings reveal a paradox. While criminal prosecutions of state officials for human rights violations are associated with some positive outcomes, like increased civil society activism and pro-democratic mobilization, they are also associated with greater political polarization and anti-system backlash. By contrast, they appear to have little effect on democratic institutions. Considering these data, a central takeaway is that the democratic effect of prosecuting political leaders tends to rest with the people. Whether punishing them helps to ensure a more democratic future depends more on how the populace responds—negatively or positively—than on the limited institutional effects resulting from punishment.

* Rachel López is a Leonard Barrack ’68 Chair in Law at Temple University Beasley School of Law.

* Geoff Dancy is an Associate Professor in the Department of Political Science at the University of Toronto, Canada. The authors are grateful to Gabriella Villafan for her research assistance. This research was also facilitated by fellowships with the Program in Law and Public Policy at Princeton University, the Carr Center for Human Rights Policy at the Harvard Kennedy School, the Lauterpacht Centre for International Law at the University of Cambridge, the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School, and the Max Planck Institute for Comparative Public Law and International Law as well as Global Scholar Award from the Fulbright U.S. Scholar Program. We are also thankful for the opportunity to present this research at the “Transitions to Democracy Revisited” workshop at Princeton University, the Global Justice Workshop at Harvard Law School, CrimFest, the American Society of International Law’s International Criminal Law Interest Group Works in Progress Conference, and the Graciela Olivárez Latinas in the Legal Academy (“GO LILA”) Workshop, as well as at the American Associations of Law Schools (“AALS”) 2024 Annual Meeting. We are grateful to have had the immense privilege of presenting this research to many of Guatemalan human rights lawyers and indigenous rights advocates who pushed for criminal accountability on June 10, 2025, and to researchers at Diálogos on June 11, 2025 in Guatemala City. Their feedback was critical to this Article. This piece was enriched by feedback from Raquel Aldana, Yutian An, Gabriella Blum, Rita Canek, Stephen Cody, Netta Cohen Barak, Connie de la Vega, Erick de León, Gabriela Domínguez, Karen Engle, Astrid Escobedo, Mailyn Fidler, John Goldberg, Daniel Haering, María Hortencia Lajuj, Juan Gabriel Ixcamparij Nolasco, Marissa Kardon Weber, Stephen Koh, Ryan Liss, Orlando López, Jane Manners, Dennis Martínez, Candida Mercedes Morales, Daniel McConkie, Carlos Morales, Rony Morales, Raul Nájera, Daniel Nuñez, Cristian Otzin, Deborah Pearlstein, Hilda Pineda, Juan Luis Polanco Santizo, Jaya Rami-Nogales, Evelyn Quina Oxlaj, Evelyn Marcelina Rangel-Medina, Itay Ravid, Dunia Ramirez, Gloria Reyes, Kim Lane Scheppele, Kathyrn Sikkink, Silvio Tay, and Richard Wilson. Finally, we would also like to express our sincere gratitude to the editors of the University of Illinois Law Review, especially Kendall Crispin, Abby Milhiser, and Brad Schutter.

Litigators and their allies can mine several sources to identify cornerstones and keystones, allowing them to argue convincingly that the Court’s attempt to ignore or abandon precedential principles warrants a full stare decisis analysis: state and federal cases, public papers of Supreme Court Justices, oral arguments, and party and amicus briefs. Relying on dozens of takings cases and snippets from the public papers of Justices Blackmun, O’Connor, Powell, and Stevens (reproduced here), the Article demonstrates how the Roberts Court has already overruled by stealth six essential principles of takings jurisprudence.

While scholars, judges, and advocates have fixated on the Court’s head-on confrontation with Chevron deference in Loper Bright, the Roberts Court has been issuing perturbing decisions with even greater implications for the future of the regulatory state. Flying under the radar, the Court has followed a path that, if continued, could result in the gradual dismantling of police power and other regulations at all levels of government.

* Richard E. Nelson Eminent Scholar Chair in Local Government, University of Florida Levin College of Law. Thank you, Danaya Wright, for allowing me to bounce ideas off your impressive and creative brain, along with Ben Johnson, Jerold Kayden, Lyrissa Lidsky, Merritt McAlister, Timothy Mulvaney, and Christopher Serkin. The author also appreciates the valuable feedback he received from participants at the 2023 Brigham-Kanner Property Rights Conference. This Article benefited greatly from the expertise of two out-standing professionals: Elizabeth Hilkin of the Lawton Chiles Legal Information Center (UF) and Ryan Reft of the Manuscript Division in the Library of Congress. Sam Mendez provided excellent research assistance.

But children are not simply miniature adults. Recent advances in our understanding of child development and brain science reveal that children are different from adults in ways highly relevant to legal proceedings. Our immigration court system must change to reflect these new insights.

This Article is the first to marshal current scientific findings regarding the cognitive, developmental, emotional, and social immaturity of children to argue children are developmentally incompetent to represent themselves in immigration court. This Article establishes that it is unfair to nominally provide children with the same rights and responsibilities as adults without considering their ability to meaningfully effectuate them. Brain and behavioral science can and should be used in the immigration context, much like their present use in the juvenile delinquency and juvenile sentencing context, to compel appointed counsel and other accommodations like child advocates and specialized juvenile dockets. Applying a developmental lens to the treatment of children in removal proceedings exposes how structural inequities baked into the immigration court system uniquely harm children, thereby unlocking new insights and strategies for advocates and policy makers to create a fairer immigration court system for children.

* Associate Professor of Law and Director of the Middleton Center for Children’s Rights at Drake University Law School. Prior to joining the legal academy, I was a Managing Attorney at Immigrant Defenders Law Center in Los Angeles. There, I defended children in their immigration removal proceedings and provided legal orientation workshops to children in Office for Refugee Resettlement shelters. Thank you to following people for the helpful insights and conversations at various stages of this project: Hunter R. Clark, Kate Evans, Anthony Gaughan, Laila Hlass, Kathleen Kim, Elizabeth Keyes, Erin Lain, Jennifer Lee, Brent Pattison, Suzan Pritchett, and Mary Yanik. This paper benefited from feedback at the New Voices in Immigration Law Works in Progress Session at the 2025 AALS Annual Meeting, the NYU Clinical Law Review Writers’ Workshop, and the AALS Sections on Education Law & Children and the Law Works-in-Progress Convening. Special thanks to my husband Erik, my colleagues at Drake University Law School, and my research assistants Martha Ames, Aubrey Kohl, Kelsey Lear, Erin Stender, Samantha Stewart, and Jasmine Yant for your edits, encouragement, and support.