About

Joseph E. Kennedy is the Willie Person Mangum Distinguished Professor at UNC School of Law, where he has been a faculty member since 1997. He teaches courses including Criminal Law and Criminal Procedure Investigation, and has previously taught Cybersecurity Law, Constitutional Law, International and Comparative Criminal Law, and Lawyering Skills. Kennedy is known for his scholarly work on criminal law and the criminal justice system, with numerous articles and essays published in prominent law reviews such as the Georgetown Law Journal, Michigan Law Review, and Harvard Civil Rights-Civil Liberties Law Review. His research often focuses on issues related to mass incarceration and the War on Drugs. He is the author of the textbook 'Criminal Law: Cases, Controversies and Problems' and 'The Short and Happy Guide to Criminal Law.' Kennedy has presented his work at leading law schools and academic conferences, and he frequently comments on criminal justice issues in the media. He earned his law degree from UCLA, where he served on the Law Review, and his bachelor's degree in History with Honors from Stanford University. Prior to his academic career, Kennedy worked as an advocate at a homeless center in Los Angeles, practiced law as a litigation associate at Morrison and Foerster, and served as a public defender in San Francisco.

Research topics

• Political science
• Criminology
• Law
• Sociology
• Law and economics

Selected publications

• Criminal Clear Statement Rules

  Open Scholarship Institutional Repository (Washington University in St. Louis) · 2019-01-01

  articleOpen accessSenior author

  There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws. The problems of over-criminalization thus seem to be both a predictable yet intractable consequence of the incentives that legislatures face. But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes. The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers. Legislatures can overcome those values, but only if they do so affirmatively and unambiguously. Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values. Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. The result will be clearer and more thoughtful criminal laws—both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner. In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules. One rule would create a default presumption of a knowing mental state requirement for material elements. The other would impose a substantial harm requirement. Both would markedly improve the state of modern criminal law.

  Publisher

• Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests

  Faculty publications · 2018-12-22 · 6 citations

  articleOpen access1st authorCorresponding

  Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish. But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that? This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs. Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest. Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012. The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude. This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs. Offenders of color are by and large not more serious offenders in terms of quantity. They just possess and sell drugs that are the most frequent target of arrest. Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.” Racial disparities might vanish or reverse if we were to make as many meth/ amphetamine and heroin arrests as crack cocaine arrests. After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons. Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest. A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

  PublisherOA PDF

• Decarcerating the Punitive Society

  Federal Sentencing Reporter · 2014-04-01 · 1 citations

  article1st authorCorresponding

  Abstract Decarceration should be justified not on instrumental grounds such as cost saving but on the basis of constitutive moral arguments. While instrumental justifications are less controversial, the path of least resistance in the short run will be the path of least progress in the long run. Punishment is in a fundamental sense constitutive. We are how we punish. We define ourselves in part by the risks that we take and by the things that we forgive. And punishment inevitably involves decisions about both risk and about forgiveness. We lost our faith in our journey toward a freer, more equal and more humane society. We are not going to restore that faith with instrumental arguments about cost or efficiency.

  PublisherDOI

• Juries for Juveniles

  ThinkTech (Texas Tech University) · 2013-01-01 · 1 citations

  articleOpen access1st authorCorresponding

  Proposes a very different type of legislative reform for juvenile transfer: a legislatively created right to a jury trial on the issue of whether juveniles should be sentenced as juveniles or as adults. Part I will briefly sketch the outlines of my proposal. Part II will describe the prevailing political constraints on juvenile justice reform by describing the most salient features of recent moral panics about crime, in general, and juvenile crime in particular. Part III will explain the advantages of my proposal in responding to these constraints and a few possible objections. Part III will also briefly describe the ways in which such a practice might eventually lead to a constitutional right to such a jury trial at some point in the future.

  Publisher

• The Drug War and the Parable of the Bad Samaritan

  Washington and Lee journal of civil rights and social justice · 2011-01-01 · 1 citations

  article1st authorCorresponding
  Publisher

• Monstrous Offenders and the Search for Solidarity through Modern Punishment

  Oxford University Press eBooks · 2011-11-17 · 40 citations

  book-chapter1st authorCorresponding

  In this article, Professor Kennedy examines the tremendous increase in the severity of punishment in America in recent decades. He posits that criminal punishment has come to serve as a new civic religion of sorts for a society worried about its ability to cohere. The depth of our anxieties about our social solidarity, Kennedy argues, expresses itself in our monstrous conceptions of crime and in the corresponding severity of our punishment. His conclusion is that crime has come to serve as a rallying cry for a divided and insecure society, and that individuals and groups try to use punishment and the criminal justice system to send symbolic messages defining core values.

  PublisherDOI

• The Story of <i>Staples v.</i> United States and the Innocent Machine Gun Owner: The Good, the Bad, and the Dangerous

  SSRN Electronic Journal · 2010-01-01

  articleOpen access1st authorCorresponding
  PublisherDOI

• The Jena Six, Mass Incarceration, and the Remoralization of Civil Rights

  Faculty publications · 2009-01-01 · 3 citations

  articleOpen access1st authorCorresponding

  Mass incarceration ultimately rests on the false assumption that African Americans need to be incarcerated in historically unprecedented numbers because of a moral breakdown in their communities. Crime is assumed to be the product of a basic moral failure in both the individual offender and in the community at large, not the product of any set of social conditions or circumstances. Recent work by sociologists, criminologists, and economists suggests that poor, urban African American communities are not communities whose norms of moral behavior have broken down but communities whose moral norms have come under unprecedented strain. Social science evidence suggests that the residents of the poorest African American urban communities believe deeply in the family and economic values of mainstream American society but are unable to realize those values because of the emergence of a relatively new and concentrated form of jobless poverty during the seventies, eighties and nineties. Mass incarceration is an unnecessary and counterproductive response to crime in a community whose norms of moral behavior remain intact but are badly strained by socioeconomic conditions. Tragically, the pervasiveness of mass incarceration as a social policy confirms its own false premise of moral breakdown among poor African American communities by stigmatizing those communities as essentially criminal.

  PublisherOA PDF

• Nanotechnology: The Future Is Coming Sooner than You Think

  2008-05-23 · 24 citations

  book-chapter1st authorCorresponding
  PublisherDOI

• Drug Wars in Black and White

  Law and Contemporary Problems · 2003-06-22 · 5 citations

  articleOpen access1st authorCorresponding

  The debate over the racial complexion of the war against drugs often devolves into a clash of fundamental assumptions that are difficult to either validate or refute. Ultimately, however, the criminal justice system is destined to find crime only where it looks for crime.

  PublisherOA PDF

Frequent coauthors

• Carissa Byrne Hessick

  Supreme Prosecutors Office of the Republic of Korea

  2 shared

• Kaci Wahlers

  1 shared

• Jean M. Cary

  1 shared

• G. Nicholas Herman

  1 shared

• Isaac Unah

  1 shared

Awards & honors

• Willie Person Mangum Distinguished Professor