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Articles 1 - 13 of 13
Full-Text Articles in Law
Opening Brief For Plaintiff-Appellant Rocky Freeman, Madeline H. Meth, Sanketh Bhaskar, Henry Drembus, Brianna Jordan
Opening Brief For Plaintiff-Appellant Rocky Freeman, Madeline H. Meth, Sanketh Bhaskar, Henry Drembus, Brianna Jordan
Faculty Scholarship
For nearly two decades, while Rocky Freeman was in federal prison, the United States treated him like a contract killer who murdered two victims even though the U.S. Probation Office knew that this information was false, and the Bureau of Prisons (BOP) knew or should have known the same merely by looking at Freeman’s pre-sentence report (PSR). As a result, Freeman spent years subject to harsh conditions of confinement that he would not have experienced had probation or BOP officers acted with reasonable care. Since learning about this negligence, Freeman has sought repeatedly to remedy the various harms he suffered, …
Inmate Assistance Programs: Toward A Less Punitive And More Effective Criminal Justice System, Erkmen G. Aslim, Yijia Lu, Murat C. Mungan
Inmate Assistance Programs: Toward A Less Punitive And More Effective Criminal Justice System, Erkmen G. Aslim, Yijia Lu, Murat C. Mungan
Faculty Scholarship
High recidivism rates in the United States are a well-known and disturbing problem. In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.
We focus on Inmate Assistance Programs (IAPs) adopted by many states. Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems. IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for …
Rico's Long Arm, Randy D. Gordon
Rico's Long Arm, Randy D. Gordon
Faculty Scholarship
RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …
The Procedural Justice Industrial Complex, Shawn E. Fields
The Procedural Justice Industrial Complex, Shawn E. Fields
Faculty Scholarship
The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …
Bail At The Founding, Kellen R. Funk, Sandra G. Mayson
Bail At The Founding, Kellen R. Funk, Sandra G. Mayson
Faculty Scholarship
How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …
The Automated Fourth Amendment, Maneka Sinha
The Automated Fourth Amendment, Maneka Sinha
Faculty Scholarship
Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …
The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence
The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence
Faculty Scholarship
The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced. This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence. We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002. Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and …
Trial By Ambush: The Prosecution Of Indians In Federal Court, Samuel Winder
Trial By Ambush: The Prosecution Of Indians In Federal Court, Samuel Winder
Faculty Scholarship
This Article addresses the Federal Rules of Criminal Procedure’s unjust impact in the prosecution of Indians in federal court. As the rules of engagement used by federal prosecutors and defense attorneys in federal court when prosecuting Indians under the Major Crimes Act and the General Crimes Act, the Federal Rules of Criminal Procedure differ from those of Civil Procedure with regard to discovery procedures. Specifically, the Federal Rules of Criminal Procedure are unjust because they do not allow defense attorneys to conduct pretrial interviews or depositions of prospective witnesses whose evidence the United States will introduce at trial or use …
Criminal Law's Hidden Consensus, Steven Arrigg Koh
Criminal Law's Hidden Consensus, Steven Arrigg Koh
Faculty Scholarship
American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …
A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose
A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose
Faculty Scholarship
This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …
The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher
The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher
Faculty Scholarship
The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
Faculty Scholarship
According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …
The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin
The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin
Faculty Scholarship
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how AI functions. Policymakers and the public increasingly sound alarms about black box AI. A particularly pressing area of concern has been criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that …