Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Pennsylvania Carey Law School (16)
- Touro University Jacob D. Fuchsberg Law Center (8)
- Selected Works (5)
- St. Mary's University (3)
- St. Thomas University College of Law (2)
-
- Texas A&M University School of Law (2)
- University of Pittsburgh School of Law (2)
- BLR (1)
- Boston University School of Law (1)
- Columbia Law School (1)
- Fordham Law School (1)
- Georgetown University Law Center (1)
- Loyola Marymount University and Loyola Law School (1)
- Maurer School of Law: Indiana University (1)
- New York Law School (1)
- Pepperdine University (1)
- SJ Quinney College of Law, University of Utah (1)
- SelectedWorks (1)
- University of Cincinnati College of Law (1)
- University of Colorado Law School (1)
- University of Georgia School of Law (1)
- University of Maine School of Law (1)
- University of Missouri-Kansas City School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- West Virginia University (1)
- Yeshiva University, Cardozo School of Law (1)
- Publication Year
- Publication
-
- All Faculty Scholarship (16)
- Touro Law Review (8)
- Faculty Scholarship (4)
- Jonathan S Simon (3)
- Articles (2)
-
- St. Mary's Law Journal (2)
- St. Thomas Law Review (2)
- Andrew Selbst (1)
- Articles & Chapters (1)
- Articles by Maurer Faculty (1)
- ExpressO (1)
- Faculty Articles (1)
- Faculty Articles and Other Publications (1)
- Faculty Publications (1)
- Fordham Law Review (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Georgia Law Review (1)
- Loyola of Los Angeles Law Review (1)
- Michael L Perlin (1)
- Nevada Law Journal (1)
- Pepperdine Dispute Resolution Law Journal (1)
- Publications (1)
- Tamar R Birckhead (1)
- The Scholar: St. Mary's Law Review on Race and Social Justice (1)
- UMKC Law Review (1)
- Utah Law Faculty Scholarship (1)
- West Virginia Law Review (1)
- Publication Type
- File Type
Articles 1 - 30 of 57
Full-Text Articles in Law
Whom Do Prosecutors Protect?, Vida Johnson
Whom Do Prosecutors Protect?, Vida Johnson
Georgetown Law Faculty Publications and Other Works
Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.
This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …
Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins
Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins
UMKC Law Review
The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?
This Article seeks to answer that question by scrutinizing …
Counseling Oppression, Angelo Petrigh
Counseling Oppression, Angelo Petrigh
Faculty Scholarship
Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.
But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …
Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud
Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud
Faculty Articles
This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.
Holding Enablers Of Child Sexual Abuse Accountable: The Case Of Jeremy Bell, Amos N. Guiora, Valeri Craigle, Aya Hibben, Henry F. Fradella
Holding Enablers Of Child Sexual Abuse Accountable: The Case Of Jeremy Bell, Amos N. Guiora, Valeri Craigle, Aya Hibben, Henry F. Fradella
Utah Law Faculty Scholarship
In the United States, 1 in every 5 women and 1 in every 13 men report being sexually abused as a child. Of the child sexual abuse that occurs during the K-12 years, much of it is aided and abetted by those in positions of authority who look the other way when abuse is known or suspected. This article uses the novel approach of holding not just the perpetrators of child sexual abuse accountable for these crimes, but also those who enable their criminal acts by failing to report suspicious behaviors or witnessed accounts of abuse. No case in more …
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Faculty Scholarship
March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …
Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz
Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz
All Faculty Scholarship
Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.
This Essay calls for a change: expand the use of a special findings verdict, the general …
Safety, Crisis, And Criminal Law, Jenny E. Carroll
Safety, Crisis, And Criminal Law, Jenny E. Carroll
Faculty Scholarship
Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …
How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus
How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus
St. Thomas Law Review
My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …
Due Process Supreme Court Appellate Division
Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton
Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton
The Scholar: St. Mary's Law Review on Race and Social Justice
When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.
Part One of this Article chronicles the forces contributing …
The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan
The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan
Faculty Scholarship
In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.
Our results suggest …
Bail And Mass Incarceration, Samuel Wiseman
Bail And Mass Incarceration, Samuel Wiseman
Georgia Law Review
It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study. It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive. But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored. Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost. And, as shown by recent empirical work, the …
Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin
Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin
Publications
This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.
Specifically, I trace two themes in the book:
(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and
(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.
I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …
Foreword: Criminal Procedure In Winter, Daniel Epps
Foreword: Criminal Procedure In Winter, Daniel Epps
Loyola of Los Angeles Law Review
No abstract provided.
Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell
Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell
Articles by Maurer Faculty
The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.
The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …
Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit
Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit
Articles
This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …
Black And Poor: The Grave Consequences Of Utah V. Strieff, Chanae L. Wood
Black And Poor: The Grave Consequences Of Utah V. Strieff, Chanae L. Wood
St. Thomas Law Review
This Comment brings reconciliation between the majority and minority opinions in Strieff by proposing a solution that will uphold Fourth Amendment rights and public safety. Part II explores the Fourth Amendment by tracing the origins of the exclusionary rule, and then discusses the Court's first step in undermining constitutional rights in Terry v. Ohio. Part III discusses the Court's trend of weakening Fourth Amendment rights and provides an in-depth analysis of the impact its most recent Fourth Amendment ruling, Strieff will have on Blacks and lower socioeconomic citizens. Part IV provides a comprehensive solution, suggesting a warrant hierarchy system that …
Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli
Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli
All Faculty Scholarship
Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.
The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under …
Measuring The Creative Plea Bargain, Thea B. Johnson
Measuring The Creative Plea Bargain, Thea B. Johnson
Faculty Publications
A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
Articles & Chapters
Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.
In this paper, I …
Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas
Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas
All Faculty Scholarship
Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …
Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams
Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams
Touro Law Review
No abstract provided.
Police Misconduct - A Plaintiff's Point Of View, Fred Brewington
Police Misconduct - A Plaintiff's Point Of View, Fred Brewington
Touro Law Review
No abstract provided.
Criminal Prosecution And Section 1983, Barry C. Scheck
Criminal Prosecution And Section 1983, Barry C. Scheck
Touro Law Review
No abstract provided.
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
All Faculty Scholarship
This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly different …
The Antidemocratic Sixth Amendment, Janet Moore
The Antidemocratic Sixth Amendment, Janet Moore
Faculty Articles and Other Publications
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 …