Law Commons^™

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

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 …

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 …

Black Lives Monitored, Chaz Arnett

Faculty Scholarship

The police killing of George Floyd added fuel to the simmering flames of racial injustice in America following a string of similarly violent executions during a global pandemic that disproportionately ravaged the health and economic security of Black families and communities. The confluence of these painful realities exposed deep vulnerabilities and renewed a reckoning with the long unfulfilled promise of racial equality, inspiring large-scale protests around the country and across the globe. As with prior movements for racial justice, from slavery abolition to the civil rights movement’s demand to end Jim Crow, protests have been met with extreme force, either …

The Public Defender Movement In The Age Of Mass Incarceration: Georgia's Experience, Robert L. Tsai

Faculty Scholarship

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end …

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 …

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

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 …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

“Black First, Children Second”: Why Juvenile Life Without Parole Violates The Equal Protection Clause, Avery W. Katz

Faculty Scholarship

The United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult crimes. Throughout the years, the Supreme Court has faced numerous cases regarding juvenile LWOP, leading to its 2021 Jones v. Mississippi decision, holding that juveniles may be sentenced to LWOP so long as “youthful qualities,” such as immaturity, recklessness, susceptibility to negative influence, are first considered in sentencing. Today, the …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Beyond Bail, Jenny E. Carroll

Faculty Scholarship

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Faculty Scholarship

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to …

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 …

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

Pretrial Detention In The Time Of Covid-19, Jenny E. Carroll

Faculty Scholarship

It is hard to overstate the impact of COVID-19. When it comes to the criminal justice system, the current COVID-19 crisis has shone a light on pre-existing flaws. Long before the first confirmed case in Seattle or elsewhere, America’s jails and prisons were particularly susceptible to contagions, exacerbated by problems from overcrowding to over policing to lack of reentry programs. This Essay focuses on one aspect of the challenges the criminal justice system faces in light of COVID-19 and beyond—that of a pretrial detention system that falls more harshly on poor and minority defendants, has swollen local jail populations, and …

Core Criminal Procedure, Steven Arrigg Koh

Faculty Scholarship

Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

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 …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey 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 …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

The Problem With Inference For Juvenile Defendants, Jenny E. Carroll

Faculty Scholarship

Much of criminal law relies on proof by inference. In criminal law, fact finders untangle not only what happened, but why it happened. It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts – the world in which they occurred but also the fact finder’s own world. Recent developments in neuroscience suggest that in the context …

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny E. Carroll

Faculty Scholarship

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis …

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …