UMD Theses and Dissertations
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Item Federal Probation Officers and Sentencing Disparity: Examining the Role of Extralegal Factors in Guidelines Calculations(2024) Mullaly, Cara; Johnson, Brian; Criminology and Criminal Justice; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Over the years, the relationship between extralegal factors and federal sentencing disparity has attracted a significant amount of research attention. Much of this work, however, has focused on judicial and prosecutorial decision-making, largely ignoring other influential actors. One such actor is the federal probation officer. Using data from the U.S. Sentencing Commission, this study explores the relationship between extralegal factors and federal probation officer’s guidelines calculations. This study uses a theoretical framework that combines focal concerns and causal attributions to argue that federal probation officers attribute the causes of criminal activity differently across demographic groups, shaping their perception of the defendant’s blameworthiness and dangerousness and ultimately resulting in differing guidelines calculations. Findings showed mixed support for the hypotheses in this study. After discussing the results and limitations of the current study, I provide direction for future study of federal probation officers and their influence on federal sentencing outcomes.Item The Defeasibility of Rights(2024) Gomez, Cody; Horty, John; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Consider the following puzzle. Presumably, you and I both have an equal right to life. But what happens if I try to kill you, and you kill me in self-defense? By most accounts, you did something morally permissible by killing me in this scenario. But, if killing me is permissible, then what happened to the initially granted right to life we both started out with? There is currently significant debate over how to explain this situation. Some have argued that my violent transgressions altogether forfeit my initial right. Due to my actions, I no longer have the right to life at all. Others have claimed that while I still generally have the right to life, this scenario satisfies criteria for a built-in exception to that standing right: I have the right in other cases, but not this one. Finally, others have suggested that I maintain my right to life in this scenario, but that it takes a lower priority in comparison to the right of the defendant, i.e., it is overridden. While the differences between these understandings of rights may appear subtle, they have drastically different implications. How we solve this puzzle affects how we adjudicate apparent conflicts of rights, how we make sense of what is owed when rights are intruded upon, and how rights function within our broader ethical and legal theories.In this dissertation, I develop a model of the last of these positions. To substantiate my view, I offer a precise model of the defeasibility of rights—situated in non-monotonic/default logic, a kind of non-classical logic—and highlight its strengths against competing views. Specifically, I show that this new schema not only salvages intuitions about infringement, but also prevents the unwieldy proliferation of rights. This is an especially desirable outcome, as it avoids blurring the line between rights and other important normative considerations. The first paper, Hohfeldian Conceptions of Rights and Rights Proliferation, argues that competing theories allow for wild proliferation of rights by adopting some form of the “correlativity doctrine,” wherein myriad duties and permissions are equivalent to rights, e.g., an act of charity no longer seems charitable if the recipient has “a right” to aid. The second paper, Rights as Defaults remedies this by rejecting the correlativity doctrine in favor of my Rights-as-Defaults Model. Using US free speech case law and work in default logic, I argue that fundamental rights are best understood as modifiable collections of defeasible generalizations. This model allows the right to free speech and its protections to accommodate new cases without building long lists of exceptions into the rights themselves while avoiding proliferation. Finally, the third paper, Revising the Right to do Wrong, applies this model to the question: do we have a moral right to do wrong? Do I have a moral right to offend a stranger even if I am required not to? I claim that there is no need for a standalone “right to do wrong” because understanding rights as defeasible means that any right can be overridden (or override competing considerations). I show how it is not paradoxical to say I have the right to offend you even though I, all-things-considered, should not, and even if we think interference would be justified.Item THE “UNEQUAL WRONGS AMENDMENT”: STATE COURT INTERPRETATIONS OF THE MARYLAND EQUAL RIGHTS AMENDMENT(2024) Justement, Shelly; Muncy, Robyn; History; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This thesis answers the question: How did Maryland state courts’ interpretations of the Equal Rights Amendment (ERA) affect the amendment’s meaning? This thesis explores state courts’ interpretations of the amendment in seven cases involving child support, spousal abandonment, abortion, rape, women’s access to exclusively male clubs, and gay marriage between the years of 1972 and 2006. The state courts’ decisions regarding the Maryland ERA promoted legal equality without providing equity between men and women or heterosexual and homosexual couples. The state courts often interpreted the ERA in narrow ways that did not always benefit women’s rights, and indeed, this thesis demonstrates that the courts’ rulings in ERA cases did not produce material equality between men and women or queer and straight couples. The courts’ narrow interpretations of the ERA were reflected by the fact that the judges interpreted the words of the amendment literally without consideration of Marylanders’ socioeconomic realities; the judges limited the reach of the ERA to state actions, not the actions of private individuals or organizations; and the judges limited the application of the ERA to cases in which men and women were treated as separate classes. In examining the consistently narrow nature of the judicial interpretations of the ERA, this thesis acknowledges the limitations of the ERA for women’s as well as gay and lesbian rights in Maryland. While benefits to men did not inherently mean that the courts took rights away from women, the courts’ interpretations of the ERA ended up limiting women’s equity with men more often than promoting it.Item CULTURE WARS AT THE SCHOOLHOUSE GATE: SCHOOL BOARD DECISION MAKING & STUDENTS’ SPEECH RIGHTS(2024) Callahan, Pamela Catherine; Scribner, Campbell F; Education Policy, and Leadership; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)School boards occupy a unique space in the fabric of American governance. School board members are often called upon to make decisions about how the values of a community are reflected in its schools, their classrooms, and even the school district’s library collection. These decisions are far from inconsequential. School board members serve as a link between federal case law and the ways students in the district will experience their First Amendment rights to free speech and expression. School boards have been in the spotlight regarding the retention and/or removal of challenged school library books (Natanson, 2020). One of the most frequent reasons for book challenges has been the inclusion of Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, and more (LGBTQIA+) characters and themes in library books (American Library Association, 2023). After studying culture war conflicts, Hunter (1991), Zimmerman (2002), and Harman (2019) posit that the bounds of pluralistic living, such as whether to include or exclude educational materials with LGBTQIA+ characters, are never settled for good. Instead, culture war-related conflicts will follow a cycle of conflict and peace. When the issue of library book challenges resurfaces, school boards must decide how to respond. Although school boards are often tasked with making difficult decisions related to the speech and expression rights of public-school students and culture war issues such as religion in schools (Ross, 1994) and the inclusion of intelligent design (Superfine, 2009); they are also responsible for ensuring that the constitutional rights of public-school students are protected. Where, if at all, might a school board member turn for guidance on these persistent challenges? For legal guidance, they might consider turning to the Supreme Court of the United States. In Island Trees School District v. Pico (1982), the Supreme Court ruled that the removal of school library books was enmeshed with the First Amendment rights of public school students. As such, Justice William Brennan argued in the plurality opinion, that school board members must avoid removing library books due to a disagreement with the ideas in the book or because of one’s motivation to remove the book for political or partisan reasons (Driver, 2018). Do board members heed this guidance and if so the degree to which school boards use the decision in Pico (1982) when making decisions about challenged library books is an open empirical question and the focus of this study. This dissertation study uses case study methodology to examine the influence of Pico (1982) on one district school board’s decision-making process during two different library book challenges in the same suburban public school district in Virginia (Yin, 2014). The first case study centers on the 2008 challenge to the book And Tango Makes Three and the second case study centers on the 2019 challenge to the book My Princess Boy. Both And Tango Makes Three and My Princess Boy were challenged by members of the school community due to LGBTQIA+ characters. Each case study offers insights into an important but little-studied phenomenon of school board decision-making, which has consequences for understanding how school boards conceptualize and balance the rights of public school students during culture war-related conflicts. The findings for each case study indicate that Pico (1982) was not a factor of influence in school board decision-making in the cases examined. This finding has implications for how the First Amendment rights of public school students are protected during library book challenges. Despite the lack of influence of Pico (1982) on board member deliberation and decision-making, each case study does offer insight into the ways that school board members engaged in the decision-making process following a book challenge as well as the way the guidance in Pico (1982) does not align to the process used by each school board. Taken together, these case studies highlight the internal processes school boards use when making book challenge decisions, the complicated legal role of school board members, areas of misalignment between the law as written and the law in practice, and how district policy is used by school board members during a culture war-related conflict.Item A Theory of Leadership and Its Applications(2023) Schwab, Leisa Elizabeth; Horty, John F; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)No system of laws and political institutions is without gaps, and leaders are required—often in the face of uncertainty and under a heavy burden of risk—to fill them. This project adopts a view of individual leadership that finds its roots in the ancient world with Plato, but which speaks to modern problems like the role of appointed administrative officials in a complex democracy and the problems of autonomous weapons. It is composed of a series of papers exploring this gap-filling leadership activity in a modern democratic state from both normative and descriptive perspectives. The first paper, “Making Ourselves Accountable: An Ethics for the Administrative State” addresses the discretionary decision making by un-elected officials through which many of our society’s important leadership decisions are made. It argues for the necessity of these leaders and recommends criteria to guide their decision making in conformity with contemporary democratic ideals. The second paper, “Seeking Standards for Leadership Reasoning in the Executive Branch by Analogy to Representation and Judicial Reasoning,” looks deeper into the work of such leaders to better understand the place of their role in shaping the law alongside legislative representation and judicial discretion. The third paper, “A Different Kind of Responsibility Gap: Trust and the Burden of Risk as a Limit on Military Automation” considers the problem of autonomous weapons in the context of this theory of the individual leader as a necessary component within the legal and institutional system. Inspired by ancient notions of the activity of governing as an activity fundamentally about leaders before it is about laws, it argues that even fallible human leaders who fall short of the ideal remain necessary no matter how sophisticated or accurate an automated system we may devise.Item The Paradox of Expertise: U.S. Abortion Law from 1973-2022(2023) Farhat, Aya H; Parry-Giles, Shawn; Communication; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In the last fifty years, abortion rights in the United States have gone from being criminalized in most states, to being legal on a federal level, to being regulated through individual state legislatures. In 1973, the landmark abortion case Roe v. Wade granted fecund persons a federal right to abortion for the first time in this nation’s history. To do so, the Supreme Court conceived of abortion rights within a rhetoric of expertise. The Court relied on legal, medical, and personal conceptions of expertise as knowledge, procedure, and deference to ground abortion rights in a precedent of privacy tied to the trimester framework. Since its codification, multiple cases at the Supreme Court and lower court levels have challenged the precedent established in Roe. These challenges have worked to both protect and constrict fecund persons’ abortion rights to various degrees. Each of these post-Roe cases have reconfigured the triangulation of expertise to make sense of abortion rights in their particular political and temporal moments. For instance, the landmark abortion case Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) sought to reinforce the precedent in Roe by clarifying its legal and medical inconsistencies with the undue burden standard. Thirty years later, the Court in Dobbs v. Jackson Women’s Health Organization (2022) decided such inconsistencies warranted returning the abortion decision back to the states. The ability for abortion rights to undergo such a significant shift legally exposes the rhetorical paradox of expertise. The last fifty years of abortion law indicates the inability of legal and medical knowledge and procedures to consistency define the boundaries of legal abortion. But it also shows how the Court has deferred to these expert institutions time and time again to first expand, and then constrict, fecund persons’ personal expertise over the abortion decision. The Paradox of Expertise explores the complex triangulation of expertise in abortion law through an analysis of three pivotal U.S. Supreme Court cases: Roe (1973), Casey (1992), and Dobbs (2022). In each of these cases, the justices interpreted this triangulation in differential ways to shift the boundaries of legal abortion. In Chapter One, I explore how Roe read the legal-medical history of abortion to authorize the trimester framework and regulate fecund persons’ abortion rights and expertise. By regulating abortion through the trimester framework, the Court entangled legal, medical, and personal expertise in a complex web that ultimately privileged legal and medical expertise throughout a fecund person’s pregnancy. In Chapter Two, I analyze Casey to show how the Court responded to the ambiguities presented by the trimester framework. In Casey, the Court reinterpreted the precedent in Roe to affirm abortion rights under an undue burden standard. Because the Court failed to define this standard in a consistent manner, future courts continued to battle over the ambiguities of abortion law. In Chapter Three, I examine the decision in Dobbs to show how such legal battles over expertise allowed the Court to reinterpret abortion history and warrant returning the abortion issue back to the states. But because the Dobbs Court failed to clarify the past inconsistencies in abortion law, state legislators, medical physicians, and fecund persons struggle to make sense of the legal, medical, and personal barriers to abortion access in the present moment. Today, the current landscape of abortion politics is still mired in the paradox of expertise that foreshadows the long road ahead for pro-abortion advocates and those seeking abortion access and care.Item WAITING ON “THE HIGHER LAW”: HENRY MASSEY AND THE STRUGGLE AGAINST PHILADELPHIA’S FUGITIVE SLAVE COURT(2023) LaRoche, Matthew David; Bonner, Christopher J; History/Library & Information Systems; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Philadelphia’s preeminence as an historical hub of Underground Railroad activity, popularized through the exploits of William Still, is well established. However, a series of archival gaps have virtually erased Philadelphia, and particularly the early years of its fugitive slave court, from the wider historiography of the Fugitive Slave Act of 1850. This work attempts to re-center Philadelphia, as well as its white-led abolitionist organizations and its African American community, in the scholarly discussion over the Act’s origin, intent, and effect. Attempting to overcome archival limitations, this work reconstructs the city’s first fugitive slave court, overseen by Commissioner Edward D. Ingraham from December of 1850 until his death in November of 1854, through the eyes of its participants. Using a close-reading approach, this thesis considers Philadelphia’s resistance to both the Ingraham court and the Act in toto from three perspectives. By comparing the case of Adam Gibson (the first victim of the Ingraham court) to that of Henry Massey, a Maryland freedomseeker and the last person sentenced before Ingraham’s death, this thesis establishes a documentary baseline through which one can trace the court’s evolution across the opening years of the Act’s enforcement. Through recreating the personal and institutional histories of Commissioner Ingraham, the Pennsylvania Abolition Society, and the abolitionist lawyers who represented Gibson, Massey, and other freedomseekers, this thesis provides context to evaluate the legal, social, and religious moves made by the city’s elite in response to the Act’s passage. Finally, by drawing out indications of black organization and agency hidden within the internal records of the Abolition Society itself, this thesis attempts to delineate the practical limits of interracial abolitionist cooperation within Philadelphia at the time. Ultimately, this thesis finds that a combination of geographic pressures and ideological guardrails particular to Philadelphia prevented a stronghold of abolitionist outrage from forming an effective counter to the Act, even while comparable cities (Boston, Syracuse, Harrisburg) developed legal and illegal strategies for shutting down their resident fugitive slave courts.Item Under Purityrannical Pressure: The Free Press Resolution to Information Crises(2023) Adams, Andrew Alan; Jaeger, Paul T; Gorham, Ursula; Library & Information Services; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Government information changed by a keystroke to serve political ends. Millions of Americans unable to access the Internet because telecom companies lobby state governments. The banning of books, closing of libraries, and criminalization of librarians suppress LGBT voices. The actions abuse power while hiding behind “fair and balanced” government information, “unfair competition” with government services, and “protecting children” from corrupting, sexual literature, making the actions purityrannical. The resolution to these crises come from an old understanding of the First Amendment’s freedom of the press, not as institutional journalists, but as an infrastructure that moves free speech through publishing, transmitting, and distributing the information to the people. The Constitution, laws and agencies passed and established by Congress, and the holdings of numerous Supreme Court cases reveal this infrastructure, but it must be formally recognized to resolve these crises and protect the First Amendment from future purityrannical attacks.Item The effects of HIV criminalization laws (and their enforcement) on HIV risk among Black and Hispanic populations(2022) Keralis, Jessica Maciel; Nguyen, Quynh C; Epidemiology and Biostatistics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Background: In the U.S., 25 states have laws that explicitly criminalize the transmission or exposure of HIV. This study, grounded in Nancy Krieger's ecosocial theory, estimated the association between HIV criminalization laws and state- (Aim 1) and county-level (Aim 2) HIV incidence rates, as well as individual HIV testing history (Aim 3), and assessed effect modification by overpolicing, using incarceration rates as a proxy. Methods: The study uses data from state- and county-level HIV incidence data from AIDSVu (2010-2019), incarceration data from the Vera Institute of Justice (2010-2018), and HIV testing data from BRFSS (2016-2019). For Aim 1, a longitudinal analysis was conducted using multivariate marginal Poisson GEE models to estimate rate ratios. For Aim 2, count-rate hierarchical (multilevel) models were fitted to estimate rate ratios. For Aim 3, logistic regression models were fitted to estimate odds ratios. Results: The presence of a state HIV testing law was associated with a higher state HIV incidence in the general and Hispanic populations (aRR=1.48 and 1.68, respectively), but higher incarceration at the state level did not significantly modify the relationship between the law and HIV incidence. At the county level, being in a state with an HIV-specific criminalization statute was associated with a higher county-wide HIV incidence rate for all three populations (aRR=1.14, 1.30, and 1.32 for the general, Black, and Hispanic populations, respectively). Unlike the state-level analysis, this association was attenuated by a higher jailed population rate for the general and Black populations. The effect modification was statistically significant for the general population (p=0.01) and marginally significant for the Black population (p=0.06). Finally, the presence of a state HIV testing law (aOR=1.06) was associated with a greater likelihood of HIV testing history in the general population. However, in HIV criminalization states, heavier policing negatively modified the effect of the law on the likelihood of having ever received an HIV test (p<0.01). Public health implications: This study contributes to a gap in the literature by using recent data to estimate the association of HIV criminalization laws and their enforcement with HIV incidence rates and HIV testing behavior.Item A New Theory of Individualized Evidence(2021) Barclay, Charles Arthur; Horty, John F; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Theories of individualized evidence have been offered to show why, inter alia, we are not justified in finding a defendant legally responsible on the basis of mere statistical evidence even if the probability of his guilt is very high. Yet, there is little discussion of properties that we would want in a robust theory of individualized evidence. In my dissertation, I have four primary goals. First, I propose four desiderata that a robust theory of individualized evidence ought to possess. Then, I show how many contemporary theories of individualized evidence do not possess all four of the desirable properties. I then develop, what I call, legally relevant alternatives (or, LRA for short) - a theory of individualized evidence that is rooted in the relevant alternatives account of knowledge in epistemology. Finally, I show how LRA does satisfy the aforementioned desiderata.