Digital Commons Network^™

The Rule Of Law Collaborative: A Center For Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels

Faculty Publications

No abstract provided.

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

The Right To Evidence Of Innocence Before Pleading Guilty, Colin Miller

Faculty Publications

No abstract provided.

The Myth Of Common Law Crimes, Carissa Byrne Hessick

Faculty Publications

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. …

The Value Of Outdoor Behavioral Healthcare For Adolescent Substance Users With Comorbid Conditions, Michael A. Gass, Thomas Wilson, Brett Talbot, Anita Reithoffer Tucker, Melissa Ugianskis, Nicholas Brennan

Faculty Publications

The damage inflicted on our society by mental health and substance use issues is reaching epidemic proportions with few signs of abating. One new and innovative strategy for addressing these comorbid issues has been the development of outdoor behavioral healthcare (OBH). This study compared the effectiveness of three post-acute adolescent substance use situations: OBH, treatment as usual (TAU), and no structured treatment (NST). The simulated target population was 13-17 years old with comorbid substance use and mental health issues. When costs were adjusted for actual completion rates of 94% in OBH, 37% in TAU, and $0 for NST, the actual …

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Faculty Publications

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should …

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, …

“You Shall Not Kill” Or “You Shall Not Murder”? The Meaning Of Ratsakh In The Sixth Commandment, Jiří Moskala

Faculty Publications

No abstract provided.

Expenditure, Coping, And Academic Behaviors Among Food-Insecure College Students At 10 Higher Education Institutes In The Appalachian And Southeastern Regions, Rebecca L. Hagedorn, Laura H. Mcarthur, Lanae B. Hood, Maureen Berner, Elizabeth T. Anderson Steeves, Carol L. Connell, Elizabeth Wall-Bassett, Marsha Spence, Oyinlola Toyin Babatunde, E. Brooke Kelly, Julia F. Waity, J. Porter Lillis, Melissa D. Olfert

Faculty Publications

Background

A number of studies have measured college student food insecurity prevalence higher than the national average; however, no multicampus regional study among students at 4-y institutions has been undertaken in the Appalachian and Southeast regions of the United States. Objectives

The aims of this study were to determine the prevalence of food insecurity among college students in the Appalachian and Southeastern regions of the United States, and to determine the association between food-insecurity status and money expenditures, coping strategies, and academic performance among a regional sample of college students. Methods

This regional, cross-sectional, online survey study included 13,642 college …

The Power Of Prosecutors, Jeffrey Bellin

Faculty Publications

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious …

The Interior Structure Of Immigration Enforcement, Eisha Jain

Faculty Publications

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Faculty Publications

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Opioid Policing, Barbara A. Fedders

Faculty Publications

This Article identifies and explores a new, local law enforcement approach to alleged drug offenders. Initially limited to a few police departments, but now expanding rapidly across the country, this innovation takes one of two primary forms. The first is a diversion program through which officers refer alleged offenders to community-based social services rather than initiate criminal proceedings. The second form offers legal amnesty as well as priority access to drug detoxification programs to users who voluntarily relinquish illicit drugs. Because the upsurge in addiction to — and death from — opioids has spurred this innovation, I refer to it …

Determination Of Vehicle Speed From Recorded Video Using Reverse Projection Photogrammetry And File Metadata, Brandon Epstein, Bryce Westlake

Faculty Publications

The prevalence of security and in‐car video has increased the number of motor vehicle accidents captured on digital video. However, inconsistencies in how to accurately determine time and distance for vehicle speed has led to examinations with varying results. A potential solution for calculating time intervals is to use frame timing contained within many digital video file's metadata, recorded with 0.000001 sec precision. This paper examines a fatal motor vehicle accident where frame timing information was used with distance measurements from reverse projection photogrammetry to calculate vehicle speed. A margin of error was then calculated based on the accuracy in …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something …

Police Legitimacy In Trinidad And Tobago: Resident Perceptions In A High-Crime Community, Ericka B. Adams

Faculty Publications

Violent crime in Trinidad and Tobago has increased over the last two decades, yet the police have been largely unsuccessful in reducing violence. Between 1999 and 2016, the murder rate increased by 475%. Despite the fact that the murder rate has increased, approximately 76 homicides are cleared each year, resulting in a low-homicide clearance rate. Using 40 semi-structured interviews with community members from a high-crime, low-income community in Trinidad and Tobago, this study examines residents’ experiences with police officers, and respondents’ willingness to work with the police to clear criminal cases. The results indicate that due to a lack of …

Evaluating The Impact Of Employing Local Tax Collectors To Improve State-Level Licensing Program Outcomes In Florida, Sergio Alvarez, Maria Bampasidou, Daniel Solís

Faculty Publications

© The Author(s) 2019. The improvement of public services is an important public policy objective, and several approaches have been proposed and implemented across all levels of government to achieve this goal. A recent policy in Florida (FL) fosters collaboration between local and state governments by allowing local tax collector (TC) offices to receive and support applications for the state’s concealed weapons (CW) license program. We use 80,020 application records to estimate process improvements brought about by this policy. Our analysis shows that by using TCs, the time for the application to be processed was one third the time it …

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia James, Keisha Lindsay

Faculty Publications

No abstract provided.

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A “Violent” Crime, Michael M. O'Hear

Faculty Publications

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in …

Evidence-Based Lawyer Regulation, Elizabeth Chambliss

Faculty Publications

The legal profession is losing its authority over the regulation of legal services. Recent changes in antitrust law have put state bar associations under a spotlight. Competition from technology companies and concerns about access to justice have increased political pressure for market liberalization. Independent research is challenging the unique value of lawyers’ services, even in formal legal proceedings, and this research is increasingly well-organized and well-funded at the national level. The organized bar is asleep at the wheel and ill-prepared to respond.

This Article argues that the United States is moving toward evidence-based lawyer regulation, and suggests strategies for equipping …

Harassment, Technology, And The Modern Worker, Joseph Seiner

Faculty Publications

This symposium paper explores why sex discrimination is so prevalent in the technology sector workplace. This paper further examines what can be done to address these problems, and how employers can work to minimize the types of gender discrimination issues that currently exist in the modern economy. This ongoing issue must be examined much more closely by technology companies given the potential for this type of harm across the entire sector. There are many things that can be done to reduce this form of discrimination and to limit the potential liability for employers.

Passionate Advocate, Laura Mcnally-Levine

Faculty Publications

Tribute to Judy Lipton

The People V. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, Ben L. Trachtenberg

Faculty Publications

Surveys taken since 2015 reveal that Americans exhibit stark partisan divisions in their opinions about colleges and universities, with recent shifts in attitudes driving changes to higher education law. In recent years, Democrats have become slightly more positive about higher education. Concurrently, Republicans have become extremely more negative, and a majority of Republicans now tells pollsters that colleges and universities have an overall negative effect on the country.

Particularly in legislative chambers controlled by Republicans, public and elite dissatisfaction with higher education has led to legal interventions into the governance of universities, with new laws related to faculty tenure, the …

Carrots, Sticks And Problem Drug Use: The Law Enforcement Lobby's Contribution To The Policy Discourse On Drug Use & The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Despite the growing support for the idea that problem drug use should be treated like a chronic medical disease, some law enforcement interest groups, including trial court judges associations, prosecuting attorneys associations, and police associations (“law enforcement groups” or “criminal justice actors”), continue to argue for the use of the criminal justice system to address the nation’s drug crises. The justification for the use of the criminal justice system to oversee the psychological and medical treatment of persons with substance use disorders (SUDs) is based on the belief that persons with SUDs are deviants, who cannot refrain from engaging in …

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Faculty Publications

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Tribute To Judy Lipton, Ayesha B. Hardaway

Faculty Publications

Tribute to Judy Lipton

The Role Of Pressure Groups And Problem Definition In Crafting Legislative Solutions To The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Organized interest groups and federal administrative agencies have historically been influential in defining problem drug use during nationwide crisis. As such, the manner in which these pressure groups defined the problem may have influenced or, at least, provided support for legislators’ decisions to shy away from a criminal justice approach and towards acceptance of a more “health-oriented” — one that did not comprehensively address demand factors or demonstrate a commitment to reforming U.S. drug policy to meet international standards of best practice. In an effort to provide a snapshot of what such involvement may look like, this article explores the …