Digital Commons Network^™

Should I Stay Or Should I Go? South Carolina's Nonlawyer Judges, Christel Purvis

South Carolina Law Review

No abstract provided.

The Shadow Bargainers, Jenny Roberts, Ronald F. Wright, Betina Cutaia Wilkinson

Articles in Law Reviews & Other Academic Journals

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the "shadow of the trial." This is a theory that some defenders embrace and others reject. Describing the factors they believe …

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Symposium: Expanding Compassion Beyond The Covid-19 Pandemic, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be "greater than necessary" to achieve the ends of justice.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Quantifying Reasonable Doubt, Daniel Pi, Francesco Parisi, Barbara Luppi

Law Faculty Scholarship

This article contributes in three ways to the prior literature on the reasonable doubt standard. First, it synthesizes the insular strands of historical, economic, jurisprudential, and doctrinal scholarship on reasonable doubt. Second, it advances a conception of the criminal standard of proof designed to avoid the various problems affecting earlier attempts to devise meaningful definitions of reasonable doubt. The definition proposed is that “reasonable doubt” be the standard of proof which minimizes the aggregate subjective expected social cost of false conviction and false acquittal. Judicial pronouncements of Blackstonian ratios (for example, that it is better that ten guilty go free …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

No abstract provided.

Exploring The Parameters Of A Child's Right To Redemption: Some Thoughts, Katherine Hunt Federle

South Carolina Law Review

No abstract provided.

A Lost Opportunity For Sentencing Reform: Plea Bargaining And Barriers To Effective Assistance, Margaret Etienne

South Carolina Law Review

No abstract provided.

Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein

South Carolina Law Review

No abstract provided.

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

Machine Learning, Automated Suspicion Algorithms, And The Fourth Amendment, Michael L. Rich

Michael L Rich

At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, algorithms created through the application of machine learning methods to collections of government data with the purpose of identifying individuals likely to be engaged in criminal activity. The novel promise of ASAs is that they can identify data-supported correlations between innocent conduct and criminal activity and help police prevent crime. ASAs present a novel doctrinal challenge, as well, as they intrude on a step of the Fourth Amendment’s individualized suspicion analysis previously the sole province of human actors: the determination of when reasonable …

The Culture Of Mass Incarceration: Why "Locking Them Up And Throwing Away The Key" Isn't Working And How Prison Conditions Can Be Improved, Melanie M. Reid

Melanie M. Reid

No abstract provided.

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

Rehabilitation Of Illicit Behaviours In The Post-Rtl Era: Disputes And Proposals, Zhenjie Zhou

Zhenjie ZHOU

How to rehabilitate illicit behaviours that were subject to the re-education through labour system has been a topic of rigorous debate since the abolition of the system. Proposals brought forward so far can generally be categorised into a criminalisation approach and an administrative approach. This article asserts that the rehabilitation of these behaviours shall strictly observe principles of efficiency, transparency and fairness and proposes that the Legislature adopt the Law on Correction of Illicit Behaviour under pilot implementation to consign illicit behaviours that were subject to the re-education through labour system to a mixed decision-making procedure. This will constitute a …

A 'Velvet Hammer': The Criminalization Of Motherhood And The New Maternalism, Eliza Duggan

Eliza Duggan

In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during pregnancy in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women if they use drugs. This Article suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which enforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from …

Miranda 2.0, Tonja Jacobi

Tonja Jacobi

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this article analyzes the range of proposals and develops a realistic set of reforms directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering …

Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley

Keith A Findley

Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reforms.

Using eyewitness misidentification—one of the leading contributors to wrongful convictions and the most thoroughly …

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.

Legal Thinking, The Adversarial Process And Exonerating Innocent Defendants: A Socio-Legal View Of The Wrongful Conviction Process., Gary J. Kowaluk

Gary J Kowaluk

Little is as frustrating as advocating the release of an innocent defendant who has been wrongfully convicted. Surprisingly, most of the wrongfully convicted fail to overturn their cases through the courts, and rely on government officials and prosecutor’s to find other ways to release them from custody. Too often the wrongful conviction process leaves lawyers and judges arguing to legally support injustices in the face of a practical common sense indicating a defendant’s innocence. This paper is an attempt to understand the tendency of legal professionals to argue against remedying a wrongful conviction in favor of the continued social injustice …

Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway

Robert Hardaway

Prior to the Supreme Court’s 2004 decision in case of Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even where the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory as to the events described in her prior statement if: 1) the victim was unavailable, and 2) the statement bore ‘adequate indicia of reliability’ as indicated by falling within a ‘firmly rooted hearsay exception’, or satisfied ‘particularized guarantees of trustworthiness’. Ohio v. Roberts …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami

Nasiruddin Nezaami

In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …

Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight

Jared J Hight

The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

Should Mere Direct Participation In Hostilities Be Treated As A War Crime?, Andrea Harrison

Andrea Harrison

This article attempts to argue that acts that constitute mere direct participation in hostilities during armed conflict should not be treated as war crimes, but rather should be criminalized domestically, or addressed through amnesties when appropriate. In order to support this argument, the author looks at both International Humanitarian Law (IHL) and International Criminal Law (ICL) and their respective treatment of direct participation in hostilities. The author then examines offenses within the 2009 Military Commissions Act which would normally be deemed as mere participation in hostilities and compares these to offenses normally found under international law. Finally, the author explains …