Law Commons^™

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

The Concept Of Criminal Law, Sandra Mayson

Scholarly Works

What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique. This Essay argues that Antony Duff’s The Realm of Criminal …

Presidential Crimes Matter, Julian A. Cook

Scholarly Works

The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact …

Reform Prosecutors And Separation Of Powers, Logan E. Sawyer Iii

Scholarly Works

For decades, state and local prosecutors won election by promising to be tough on crime. Today, a new breed of prosecutor has gained prominence by campaigning on, and then implementing, reform agendas. Rather than emphasize the crimes they plan to prosecute, these reform prosecutors promise to use their discretion to stop the prosecution of certain crimes and halt the application of certain sanctions. They base their decision not on a lack of resources, but rather on a belief that the enforcement of those laws is unwise or unjust. Critics have decried such policies as both inappropriate and undemocratic. Prosecutors, critics …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

The Persistence Of Fatal Police Taserings In 2018, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings have been a persistent phenomenon in the United States for nearly two decades. Steadily, relentlessly, year after year, month after month, our police kill citizens with tasers. This article reviews the history of fatal police taserings and those that occurred in 2018.

The Case That Stirred The State Of Georgia, Donald E. Wilkes Jr.

Popular Media

In the second half of the 19th Century, hundreds of murders occurred in Georgia, but only two murder cases electrified the entire state. Both cases were the subject of massive amounts of publicity in Georgia newspapers, and for years both cases were ceaselessly talked about in every part of this state.

One of these two notable murder cases was the Woolfolk murder case, involving Tom Woolfolk, nicknamed Bloody Woolfolk, who in 1887 murdered nine members of his family with an axe in Bibb County and after two trials was hanged in 1890. In 1997, I published a book review in …

Is Vagueness Choking The White-Collar Statute?, David Kwok

Georgia Law Review

No abstract provided.

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

Bias In, Bias Out, Sandra G. Mayson

Scholarly Works

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies …

Cook's Field Guide To Prosecution In Georgia, Alan A. Cook

Books

In this practical guidebook former district attorney and director of the University of Georgia's School of Law Prosecutorial Justice Program Alan Cook shares his personal wisdom and advice gathered from his decades of experience into a single volume. The handbook includes introductions to each chapter topic, plus both quick and detailed reference sections on all aspects of criminal law and procedure. It also includes useful appendices with step-by-step practice guides for how to perform specific prosecutorial tasks (such as how to take a guilty plea). Law student testimonies from now seasoned attorneys at the start of the book indicate the …

Arresting The Village-To-Prison Pipeline: Mandatory Criminal Adr As A Transitional Justice Strategy, Jeremy Akin

Georgia Journal of International & Comparative Law

No abstract provided.

American Hypocrisy: How The United States' System Of Mass Incarceration And Police Brutality Fail To Comply With Its Obligations Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, R. Danielle Burnette

Georgia Journal of International & Comparative Law

No abstract provided.

Comment: Containerization Of Contraband: Battling Drug Smuggling At The Fourth Busiest Container Handling Facility In The United States, Adam Smith

Georgia Journal of International & Comparative Law

No abstract provided.

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.

The Persistence Of Fatal Police Taserings In 2017, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings are a persistent phenomenon in the United States. Every year dozens of Americans are fatally tasered by our police.This article looks at the number of deaths cause by police tasering during 2017.

The Difficulty Of Discerning The Effect Of Neuroscience: A Peer Commentary Of Shen Et Al. 2018, John B. Meixner Jr.

Scholarly Works

Neuroscience is often considered to have a certain ‘seductive allure’.1 Its mystique should not besurprising. Seeking to understand the network of nearly 100 billion neurons that make up the human brain, neuroscience examines some of the most difficult questions imaginable. And yet, it is also a deeply personal discipline—questions like, ‘How do we create memories?’ and ‘What causes emotions?’ touch on experiences shared by all people.

Does the mystique of neuroscience cause individuals to ascribe undue weight to neuroscientific findings, or assume that neuroimages indicate research quality? Over the past decade, a literature has sprung up seeking to answer questions …

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Dangerous Defendants, Sandra G. Mayson

Scholarly Works

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot

Scholarly Works

The harms of puppy mills have been well-publicized over the past decade: hundreds of female dogs living out their lives in small cages, producing puppies for sale with each heat cycle, with neither the breeding stock nor puppies receiving normal veterinary care. In popular media, academic critiques, activist publications, and legislative discussion, puppy mills are contrasted with smallvolume dog breeders—the hobby breeder or inadvertent breeder who has only a few dogs and treats them as pets or members of the family, breeding occasionally for personal reasons. Both state and federal laws have been designed to regulate puppy mills and other …

Due Process Abroad, Nathan Chapman

Scholarly Works

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up to now, …

Voting Rights And The History Of Institutionalized Racism: Criminal Disenfranchisement In The United States And South Africa, Brock A. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

The Persistence Of Fatal Police Taserings 2016, Donald E. Wilkes Jr.

Popular Media

In this Article, Professor Wilkes updates his research on police tasering by surveying the fatal taserings by police officers that occurred in 2016.

Mass Suppression: Aggregation And The Fourth Amendment, Nirej Sekhon

Georgia Law Review

The FourthAmendment's exclusionary rule requires that
criminal courts suppress evidence obtained as a result of
an unconstitutionalsearch or seizure. The Supreme Court
has repeatedly stated that suppression is purely
regulatory, not remedial. Its only purpose is to deter
future police misconduct, not to remedy past privacy or
liberty harms suffered by the defendant. Exclusion, in
other words, is for the benefit of community members who
might, sometime in the future, be subject to police
misconduct like that endured by the defendant.
Exclusion's regulatory purpose would be greatly aided if
criminal courts could identify when a suppression motion
involved Fourth Amendment …

"Clientless" Prosecutors, Russell M. Gold

Georgia Law Review

Class counsel and prosecutors have a lot more in
common than scholars realize. Because these lawyers
have to make decisions on their client's behalf that clients
would make in other contexts, they prompt substantial
concerns about lawyers' accountability to their clients.
Accordingly, there is a lot that each context can learn from
the other about how to hold these lawyers accountable.
This Article considers what criminal law can learn from
class action law. Its central insights are first that diffuse
entities comprised largely of apathetic individuals cannot
be expected to hold their lawyers accountable. And second,
to combat that accountability …

Trans-Lating The Eighth Amendment Standard: The First Circuit's Denial Of A Transgender Prisoner's Constitutional Right To Medical Treatment, Bethany L. Edmondson

Georgia Law Review

In December of 2014, the First Circuit Court of Appeals
held, en banc, that the Massachusetts Department of
Corrections was not constitutionally obligated to provide
Michelle Kosilek, a transgender prisoner, with sexual
reassignment surgery. Kosilek sued the prison, arguing
that her Eighth Amendment rights against cruel and
unusual punishment were violated. The First Circuit held
that Kosilek did not have a serious medical need, due to
the prison's alternative treatment, and that the prison was
not deliberately indifferent to that need. This Note argues
that the First Circuit erred in applying the "serious
medical need" prong of the cruel and …

An Aggravating Adolescence: An Analysis Of Juvenile Convictions As Statutory Aggravators In Capital Cases, Lesley A. O'Neill

Georgia Law Review

In death penalty cases there is a requirement that
certain statutory aggravators must be present in order to
reach a death verdict. One such statutory aggravator in
most states is the defendant having previously committed
a felony, which can include crimes committed as a
juvenile. While the Supreme Court ruled in 2005 that
sentencing a defendant to death for crimes they committed
as a juvenile is unconstitutional, many states' death
penalty statutes allow for the possibility that the sole
aggravator relied on for a verdict of death is a previous
juvenile conviction. This Note argues that based on the
Court's …

Give It To Me, I'M Worth It: The Need To Amend Georgia's Record Restriction Statute To Provide Ex-Offenders With A Second Chance In The Employment Sector, Bonita A. Huggins

Georgia Law Review

In the era of mass criminalization, where over 70
million Americans and almost four million Georgians
have a criminal record, the collateral consequences that
accompany criminal records have become barriers to
employment for many ex-offenders trying to reenter the
workforce. Blanket exclusionary hiring policies that
apply to all individuals with a record regardless of the
nature of the offense or time since its commission have
left a portion of the population with little to no
opportunity to act as productive, contributing members
of society.
Georgia's current statutory scheme built to alleviate
the effects of the collateral consequences of a criminal …

Criminal Law As Family Law, Andrea L. Dennis

Scholarly Works

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in …

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

Scholarly Works

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …