Law Commons^™

Evidence Rules For Decarceration, Erin Collins

Law Faculty Publications

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, …

Abolishing The Evidence-Based Paradigm, Erin Collins

Law Faculty Publications

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Death Penalty Exceptionalism And Administrative Law, Corinna Lain

Law Faculty Publications

"In the world of capital punishment, the oft-repeated refrain “death is different” stands for the notion that when the state exercises its most awesome power—the power to take human life—every procedural protection should be provided. Every safeguard should be met. Granted, doing so makes the death penalty cumbersome. And granted, it slows what Justice Blackmun famously called “the machinery of death.” But when the stakes are literally life and death, the idea is that we ought to make sure that whatever the state does, it does right.

Scholars have lamented the way that this idea of death penalty exceptionalism has …

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

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 …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Lain

Law Faculty Publications

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

Punishing Risk, Erin Collins

Law Faculty Publications

Actuarial recidivism risk assessments-statistical predictions of the likelihood of future criminal behavior-drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

Virginia Practice Series: Jury Instructions, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

Virginia Practice Series-Jury Instructions is a continuation and update of previous editions, which won widespread approval among the bench and bar for almost 40 years.

As in the past, this book is primarily confined to the most common areas of jury trial work, torts and criminal law. Where possible, the language of the instructions is taken directly from reported cases or case records. Where this is not possible, we have set out instructions that should meet both the general rules regarding the form of instructions and the specific substantive legal rules. In the latter cases, close attention has been paid …

Charging On The Margin, Paul T. Crane

Law Faculty Publications

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses- penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on …

The Criminalization Of Title Ix, Erin R. Collins

Law Faculty Publications

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses …

Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain

Law Faculty Publications

In this Response, I first engage with McLeod’s article, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with the analytical moves it makes along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other …

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

Restorative Justice For Multinational Corporations, Andrew B. Spalding

Law Faculty Publications

Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address …

The Politics Of Botched Executions, Corinna Barrett Lain

Law Faculty Publications

In this symposium essay, I explore the politics of botched executions, discussing state responses to the latest round of executions gone wrong and the ways in which those responses matter. Part I recounts four botched executions in 2014 and the state responses that accompanied them. Part II makes three observations about those responses-one about states' fealty to the death penalty, one about backlash politics and the scope of the public relations problem, and one about the changing cultural construct of lethal injection in the United States. Part III explores how state responses to botched executions (or the lack thereof) might …

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and its tragic …

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study …

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.

Watching The Watchers, Ronald J. Bacigal

Law Faculty Publications

This article focuses on the threat that increasingly sophisticated technology can pose to individual privacy. However, the author would like to provide the “yin to the yang” and point out the obvious: technology itself is not the culprit, because it is a double-edged sword, a tool that can be used to protect as well as invade privacy. We need not endorse the single-minded approach of WikiLeaks to recognize the benefits that occur when technology discloses government cover-ups or simply provides accurate information where none previously existed.

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

Lessons Learned From The Evolution Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death …

Did The Court Kill The Treason Charge?: Reassessing Cramer V. United States And Its Significance, Paul T. Crane

Law Faculty Publications

This Article has two main objectives. First, I will analyze the Court's decision in Cramer v. United States. Based on internal court documents, such as draft opinions and private memoranda, it is clear that the Justices had more on their minds than the specific legal question at hand. Second, I will reassess the relationship between Cramer and the lack of treason charges after 1954 and offer an explanation for the disappearance of treason prosecutions until the indictment of Gadahn in 2006. Specifically, I will highlight the significance of a traditionally underappreciated portion of the Cramer decision: the Court's statement that …

Can Prosecutors Bluff? Brady V. Maryland And Plea Bargaining, John G. Douglass

Law Faculty Publications

The author discusses the symbolic value of the Brady rule in the pretrial context in the U.S. criminal justice system. Brady's symbolic power remains stronger than its corrective power in post-trial motions. It serves as a constitutional reminder to prosecutors because they cannot serve as architects of unfairness. Most prosecutors disclose more Brady material in pretrial discovery than the constitutional rule actually demands. This indicates that prosecutors can bluff.

"True Threats" And The Issue Of Intent, Paul T. Crane

Law Faculty Publications

This Note will proceed in five Parts. Part I will serve as a short introduction to the category of true threats and its place within First Amendment jurisprudence. Part II will examine the history of true threats and intent leading up to Virginia v. Black, highlighting the foundational opinion of Watts v. United States and the various intent approaches that became available in its wake. Part III will discuss the potential interpretations of the language in Black, and Part IV will explain how lower courts have treated the Court's definition of true threats in Black. Finally, Part V will address …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

Countermajoritarian Hero Or Zero - Rethinking The Warren Court's Role In The Criminal Procedure Revolution, Corinna Barrett Lain

Law Faculty Publications

With last fall marking the fiftieth anniversary of Earl Warren's appointment as Chief Justice, enough time has passed to place the criminal procedure revolution in proper historical perspective and rethink the Court's role there as countermajoritarian hero. In the discussion that follows, I aim to do that by examining five of the revolution's most celebrated decisions: Mapp v. Ohio, Gideon v. Wainwright, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. In none of these cases, I argue, did the Supreme Court act in a manner truly deserving of its countermajoritarian image. To be clear, I do not …

Virtual Cross-Examination: The Art Of Impeaching Hearsay, John G. Douglass

Law Faculty Publications

Trial lawyers and judges are quite accustomed to courtroom battles over the admissibility of hearsay. But relatively few have much experience at challenging the credibility of hearsay. Once hearsay is admitted in evidence, even the ablest advocates typically proceed as if the hearsay battle were over, at least until the appeal. Few lawyers take advantage of the opportunities available to impeach the hearsay declarant. Consider the perspective of one experienced trial judge: I sometimes wonder at what seems to me the passing up of golden opportunities by the able advocate. Foremost among these lost opportunities is the virtual total neglect …

Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass

Law Faculty Publications

In this essay, I first examine some of the strategic choices spawned by the Supreme Court's "microscopic" focus on reliability in confrontation-hearsay cases. Rather than promoting the value at the core of the Confrontation Clause-the adversarial testing of prosecution evidence-the Court's approach leads to choices that ignore that value. While the Court scrutinizes hearsay under the microscope of reliability, it leaves the parties free to ignore and even to avoid available opportunities for effective confrontation of the hearsay declarant. At the same time, the Court's constitutional definition of reliability-which it equates with "firmly rooted" hearsay exceptions -has encouraged prosecutors to …

Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that the role of Brady v. Maryland in protecting the innocent from wrongful conviction is just as essential in the plea bargaining context as it is at trial, and that therefore even defendants who plead guilty should be entitled to Brady's protections. However, she concludes that Brady's application in the plea bargaining context is destined to provide only a shadow of the protection Brady provides at trial because of the materiality standard currently used to judge post-plea Brady claims. In making both points, she employs a model of the plea bargaining defendant's decision-making process, using modern choice …

Fatal Attraction? The Uneasy Courtship Of Brady And Plea Bargaining, John G. Douglass

Law Faculty Publications

Part I of this Article discusses the natural attraction between Brady-a rule requiring disclosure of evidence favorable to a defendant-and plea bargaining-a practice where such information is at a premium for defendants. Part II describes how an increasing number of courts have adapted Brady to fit in the world of a plea bargain, in the process changing Brady's point of reference from the jury's verdict to the defendant's tactical decision to plead guilty. Part ill argues that this change in focus narrows Brady's substantive coverage and renders the rule practically unenforceable following most guilty pleas. Part IV then assesses the …