Law Commons^™

Judges And Mass Incarceration, Carissa Byrne Hessick

William & Mary Bill of Rights Journal

It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …

Debiasing Criminal Justice, Sandra Guerra Thompson, Nicole Bremner Cásarez

William & Mary Bill of Rights Journal

The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a …

The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler

William & Mary Bill of Rights Journal

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will …

Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen

William & Mary Bill of Rights Journal

Local jails in the United States incarcerate millions of people each year. The COVID-19 pandemic made jail health a pressing public health concern nationally, where releasing individuals from jails occurred across the country in order to prevent pandemic spread. But releases also faced substantial resistance and exposed long-standing challenges in delivering adequate healthcare in jail settings. People in jail have substantially higher levels of medical need than individuals in the general population, with large numbers having serious mental illnesses and substance use disorders. Further, overcrowded conditions and poor healthcare standards and delivery make jails harmful to those already-vulnerable people. What …

Defending The Less Dead: Using The Decriminalization Of Sex Work To Combat The High Incidence Of Serial Homicide Of Street-Based Sex Workers, Lauren E. Fernandez

William & Mary Journal of Race, Gender, and Social Justice

Sex workers have historically represented a disproportionate percentage of all victims of serial murder. Several serial murderers in the past thirty years have evaded detection for years, taking the lives of dozens of victims, by targeting sex workers, playing off the biases of society and law enforcement, and counting on the halfhearted investigation techniques that often followed missing person reports for less valued members of society, or the “less dead.” This Note argues that the decriminalization of all aspects of sex work is the surest way to improve the safety of street-based sex workers and reduce high victimization of this …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Standby Guardianship For Incarcerated Custodial Parents, Lyla R. Bloom

William & Mary Journal of Race, Gender, and Social Justice

When a child’s custodial parent is incarcerated, the child is left to either live with relatives who do not have the legal authority to make decisions for him or to live with strangers by way of the foster care system. This Note identifies standby guardianship laws as a means to better care for children of incarcerated parents by expanding an already existing legal framework. Currently, standby guardianship laws allow custodial parents suffering from debilitating illnesses to grant legal custody over their children to another adult for the length of their incapacity without terminating their own parental rights. This Note argues …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Imposing A Daily Burden On Thousands Of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists' Fourth Amendment Rights In Kansas V. Glover, George M. Dery

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, …

Adree Edmo, The Eighth Amendment, And Abolition: Evaluating The Fight For Gender-Affirming Care In Prisons, Mike Greene

William & Mary Journal of Race, Gender, and Social Justice

This Comment argues that the Eighth Amendment litigation strategy to secure gender confirmation surgery for incarcerated transgender people is a non-abolitionist “reformist” reform that expands the criminal punishment system that perpetuates state violence against transgender people. This Comment proposes an abolitionist framework as a transformative approach to evaluating criminal punishment system reforms and securing gender-affirming care for transgender people, incarcerated or otherwise. This Comment then proposes two abolitionist steps towards trans justice, health, and liberation.

This Comment will first provide background on gender-affirming medical care, current medical standards for assessing gender-affirming care, and the standards that courts use to evaluate …