Law Commons^™

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 …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

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 …

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 …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

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, …

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, …

"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 …

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 …

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 …

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …

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 …

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. …

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 …

Third Party Consent And Container Searches In The Home, Harlan Thomas Mechling

Washington Law Review

Circuit courts disagree as to whether law enforcement officers have a duty to inquire about a resident’s actual authority to consent to searches of ambiguous containers in a common area. Two circuit courts use the ambiguity approach and two circuit courts use the obviousness approach. The ambiguity approach articulated by the D.C. Circuit in United States v. Peyton provides protection for individuals’ rights while placing a minimal burden on law enforcement officers. In Peyton, the D.C. Circuit held that law enforcement officers have a duty to ask clarifying questions if ownership over a container is ambiguous. The ambiguity approach …

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 …

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 …

Gross Error, Eric Berger

Washington Law Review

Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases. The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not …

Gross Error, Eric Berger

Washington Law Review

Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases. The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not …

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 …

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 …

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 …

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 …

The Not So Speedy Trial Act, Shon Hopwood

Washington Law Review

The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been …

Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley

Washington Law Review

Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept—children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an …

Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas

Washington Law Review

This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman “harmless beyond a reasonable doubt” standard rather than the Brecht “substantial and injurious effect” standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply. Currently, a lopsided circuit split exists regarding whether harmless error review applies …

Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas

Washington Law Review

This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman “harmless beyond a reasonable doubt” standard rather than the Brecht “substantial and injurious effect” standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply. Currently, a lopsided circuit split exists regarding whether harmless error review applies …