Law Commons^™

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Farewell To The Felonry, Alice Ristroph

Faculty Scholarship

No abstract provided.

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti

Faculty Scholarship

When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). …

Techno-Policing, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Criminal Procedure And The Good Citizen, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …

The Systems Fallacy: A Genealogy And Critique Of Public Policy And Cost-Benefit Analysis, Bernard Harcourt

Faculty Scholarship

This essay identifies the systems fallacy: the mistaken belief that systems-analytic decision-making techniques, such as cost-benefit or public policy analysis, are neutral and objective, when in fact they normatively shape political outcomes. The systems fallacy is the mistaken belief that there could be a nonnormative or scientific way to analyze and implement public policy that would not affect political values. That pretense is mistaken because the very act of conceptualizing and defining a metaphorical system, and the accompanying choice-of-scope decisions, constitute inherently normative decisions that are value laden and political in nature. The ambition of decision theorists to render policy …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

A ‘Bad Rap’: R. V. Skeete And The Admissibility Of Rap Lyric Evidence, Ngozi Okidegbe

Faculty Scholarship

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy.¹ The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Joshua Gupta-Kagan

Faculty Scholarship

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults …

Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

Faculty Scholarship

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …