Law Commons^™

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

The Constitution Of Police Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Race, Policing, And Technology, Bennett Capers

Faculty Scholarship

No abstract provided.

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 …

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

Bail Nullification, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

Dismissals As Justice, Anna Roberts

Faculty Scholarship

No abstract provided.

Democratizing Criminal Justice Through Contestation And Resistance, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

How To Assess The Real World Application Of A Capital Sentencing Statute: A Response To Professor Flanders’S Comment, John Mills

Faculty Scholarship

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope. To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst. Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point. This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract. This response focuses on Arizona’s capital sentencing regime …

Informants & Cooperators, Daniel C. Richman

Faculty Scholarship

The police have long relied on informants to make critical cases, and prosecutors have long relied on cooperator testimony at trials. Still, concerns about these tools for obtaining closely held information have substantially increased in recent years. Reliability concerns have loomed largest, but broader social costs have also been identified. After highlighting both the value of informants and cooperators and the pathologies associated with them, this chapter explores the external and internal measures that can or should be deployed to regulate their use.

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 …

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

Constraining Monitors, Veronica Root

Faculty Scholarship

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

Our Criminal Laws, Our Constitution, Sarah Seo

Faculty Scholarship

This essay reviews three recently published books that further explore this insight in the twentieth century. At first glance, vagrancy laws, the free will problem, and criminal records may seem to share little in common. But each study illuminates how criminal laws have defined our nation by creating what historian Barbara Welke has termed "borders of belonging," a boundary that laws create between people who enjoy full citizenship and those who do not. After all, a conviction and imprisonment are acts of social and political exclusion. Even the policing of suspected offenders often reveals who does not completely belong.

The …