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After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

"Benevolent Paternalism" Revisited, Daniel H. Foote

Articles

Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Benevolent Exclusion, Anna Offit

Washington Law Review

The American jury system holds the promise of bringing common sense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the …

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson

Washington Law Review

In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests. …

Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze

Washington Law Review

A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes …

Contesting Police Credibility, Rachel Moran

Washington Law Review

Criminal cases often amount to credibility contests between two actors: the complainant, testifying for the government, and the defendant. In theory, the defendant’s opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining …

Incentivized Informants, Brady, Ruiz, And Wrongful Imprisonment: Requiring Pre-Plea Disclosure Of Material Exculpatory Evidence, Markus Surratt

Washington Law Review

An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do? Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not …

Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayama

Washington International Law Journal

Malcolm M. Feeley examined cases of criminal justice reform in the United States, where reforms can be conceived and initiated in a very open structure, but implementation of the introduced reforms can be handed over to highly fragmented implementers. The story of mandatory videotaping of interrogations and accompanying changes in Japan demonstrates the reform process at the other end of the scale, where the members of the criminal justice establishment can exert a strong influence even at the conception and initiation stages, and have even stronger control at the implementation and routinization stages. We believe that Feeley’s theoretical framework can …

Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su

Washington International Law Journal

This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations …

South Africa's Dilemma: Immunity Laws, International Obligations, And The Visit By Sudan's President Omar Al Bashir, Ntombizozuko Dyani-Mhango

Washington International Law Journal

President Al Bashir has avoided the International Criminal Court (“ICC”) for seven years and has been able to travel to both states that are party to the Rome Statute and states that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of states parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the …

The Bright Line's Dark Side: Pre-Charge Attachment Of The Sixth Amendment Right To Counsel, Steven J. Mulroy

Washington Law Review

In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage …

Justice Visualized: Courts And The Body Camera Revolution, Mary D. Fan

Articles

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story—or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception.

Now a revolution is coming. Across the nation, police departments are deploying body cameras. Analyzing body camera policies from police departments across the nation, the article reveals an unfolding future where much of the main staple events of criminal procedure law will be recorded. Much of the current focus is on …

The Antidemocratic Sixth Amendment, Janet Moore

Washington Law Review

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein

Washington Law Review

The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as …

Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein

Washington Law Review

The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as …

Trial By One's Peers: The Need To Expand Japan's Lay Judge System, Harrison L.E. Owens

Washington International Law Journal

As a civil law-based country, Japan’s legal system has historically placed a strong emphasis on the formalistic application of code provisions to cases by professional judges without a jury. Within the criminal justice system, prosecutors have played a highly significant role in all cases. They exclusively make the decision to indict an alleged criminal, conduct investigation of crimes, initiate a criminal case, and they also control and supervise enforcement of a conviction. In addition, the Prosecutors Office of Japan has historically emphasized the need to obtain a high rate of convictions to maintain the Japanese public’s trust in, and high …

The Immortal Accusation, Lindsey Webb

Washington Law Review

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering that system’s larger allegiance to attaining and preserving findings of guilt. Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured …

State V. Crumpton: How The Washington State Supreme Court Improved Access To Justice In Post-Conviction Dna Testing, Jordan Mccrite

Washington Law Review

Post-conviction DNA testing is a valuable tool for ensuring innocent people are not wrongfully incarcerated. Society has strong interests in confirming that available, yet previously untested, DNA evidence matches the person convicted. Access to post-conviction DNA testing, however, has been limited to maintain finality and avoid an over-burdened court system. This Note examines post-conviction DNA testing in Washington State, particularly after the 2014 Washington State Supreme Court decision, State v. Crumpton. In Crumpton, a majority of the Court—over a strongly worded dissent—read a favorable presumption into Washington’s post-conviction DNA testing statute. The favorable presumption requires courts to presume …

Religious Objections To The Death Penalty After Hobby Lobby, Danieli Evans

Articles

In Glossip v. Gross, the Supreme Court held that in order to prevail on the claim that a method of execution is cruel and unusual punishment, petitioners must prove that there is an available alternative that entails a lesser risk of pain. In this case, the state was using a method that is allegedly more painful than drugs used in the past because manufacturers of the preferable drugs objected to selling them for the purpose of executions. These manufacturers are not alone in their desire to boycott the death penalty. Many religious groups have declared opposition to the death …

Patching Old Wineskins: Heightened Deference Towards Saiban-In Findings Of Fact On Koso Appeals Is Not Enough, Caleb Jon F. Vandenbos

Washington International Law Journal

The successful introduction of the saiban-in seido—the Japanese lay assessor system—was a tremendous step towards creating meaningful exchange between the public and the judiciary and democratizing the criminal justice system in Japan. To preserve the quality of this exchange, judges must conscientiously solicit and respect lay assessor input during deliberations, and saiban-in decisions must retain their force on appeal. Under current appellate procedure, however, saiban-in findings of fact may be replaced on koso appeal. Koso appeals threaten to eviscerate lay participants’ contributions in the individual case being reviewed and, in the long term, will discourage judges from taking lay …

A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis

Washington Law Review

Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …

Experimental Execution, Seema K. Shah

Washington Law Review

On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will …