Law Commons^™

The Trouble With Time Served, Kimberly Ferzan

All Faculty Scholarship

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …

Qualifying Prosecutorial Immunity Through Brady Claims, Paul Heaton, Brian M. Murray, Jon B. Gould

All Faculty Scholarship

This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice …

#Wetoo, Kimberly Kessler Ferzan

All Faculty Scholarship

The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in …

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

All Faculty Scholarship

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common …

Pretrial Detention And The Value Of Liberty, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it?

This Article confronts the question of …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

All Faculty Scholarship

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

All Faculty Scholarship

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20^th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …

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 …

A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

All Faculty Scholarship

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the …

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Covid And Crime: An Early Empirical Look, David S. Abrams

All Faculty Scholarship

Data from 25 large U.S. cities is assembled to estimate the impact of the onset of the COVID-19 pandemic on crime. There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes. The decline appears to precede stay-at-home orders, and arrests follow a similar pattern as reports. There is no decline in homicides and shootings, and an increase in non-residential burglary and car theft in most cities, suggesting that criminal activity was displaced to locations with fewer people. Pittsburgh, New York City, San Francisco, Philadelphia, Washington …

The Saga Of Pennsylvania’S “Willie Horton” And The Commutation Of Life Sentences In The Commonwealth, Regina Austin

All Faculty Scholarship

In 1994, Reginald McFadden’s sentence of life without the possibility of parole was commuted by the governor of Pennsylvania, and he was shipped to New York to be supervised by a bunch of amateurs. Within roughly 90 days, he murdered two people, raped and kidnapped a third, and possibly murdered a fourth. McFadden proved to be Lieutenant Governor Mark Singel’s “Willie Horton.” Singel, who had voted for McFadden’s release as a member of the Board of Pardons, lost the gubernatorial election to his Republican opponent who ran on a “life-means-life” platform. Compounding the tragedy of McFadden’s actions, the Pennsylvania Constitution …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

All Faculty Scholarship

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most …

The Opposite Of Punishment: Imagining A Path To Public Redemption, Paul H. Robinson, Muhammad Sarahne

All Faculty Scholarship

The criminal justice system traditionally performs its public functions – condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms – through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and …

Detention By Any Other Name, Sandra G. Mayson

All Faculty Scholarship

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

All Faculty Scholarship

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements …

Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

All Faculty Scholarship

This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized norms that …

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

All Faculty Scholarship

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …

The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton

All Faculty Scholarship

No abstract provided.

Brief Of National Law Professors Of Criminal, Procedural, And Constitutional Law, In Re Humphrey, California Supreme Court, Regarding The Imposition Of Money Bail And Conditions Of Pretrial Release, Sandra G. Mayson, Kellen R. Funk

All Faculty Scholarship

When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the …

Judicious Imprisonment, Gregory Jay Hall

All Faculty Scholarship

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

Military Justice: A Very Short Introduction (Book Review), Mark Patrick Nevitt

All Faculty Scholarship

This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature. …

Mental Disorder And Criminal Justice, Stephen J. Morse

All Faculty Scholarship

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

Dangerous Defendants, Sandra G. Mayson

All Faculty Scholarship

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

All Faculty Scholarship

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent constitutional …

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

All Faculty Scholarship

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …