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Criminal Procedure

Criminal procedure

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Full-Text Articles in Law

Prejudice-Based Rights In Criminal Procedure, Justin Murray Jan 2020

Prejudice-Based Rights In Criminal Procedure, Justin Murray

Articles & Chapters

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice- based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element ...


Criminal Law In Crisis, Benjamin Levin Jan 2020

Criminal Law In Crisis, Benjamin Levin

Articles

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in ...


What's Wrong With Police Unions?, Benjamin Levin Jan 2020

What's Wrong With Police Unions?, Benjamin Levin

Articles

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often ...


The Failure Of The Criminal Procedure Revolution, William T. Pizzi Jan 2020

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Articles

No abstract provided.


Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin Dec 2019

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 ...


Facial Recognition And The Fourth Amendment, Andrew Ferguson Oct 2019

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say about this ...


The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky Sep 2019

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

Faculty Scholarship at Penn Law

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 ...


Deferred Prosecution Agreements In Singapore: What Is The Appropriate Standard For Judicial Approval, Eunice Chua, Benedict Wei Qi Chan Aug 2019

Deferred Prosecution Agreements In Singapore: What Is The Appropriate Standard For Judicial Approval, Eunice Chua, Benedict Wei Qi Chan

Research Collection School Of Law

Originating from the US, deferred prosecution agreements (“DPAs”) have made their way to the UK through the Crime and Courts Act 2013 and Singapore through the Criminal Justice Reform Act 2018. The Singapore model for approval of DPAs draws heavily from the UK and both require proof to a court that DPAs are in the “interests of justice” and that their terms are “fair, reasonable and proportionate” before DPAs can be approved. This paper considers the theoretical basis for the court’s approval of DPAs, critically examines the application of the tests for approval of DPAs in the UK and ...


Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane Jan 2019

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 ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


Police Disciplinary Appeals, Stephen Rushin Jan 2019

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook Jan 2019

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In ...


A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt Jan 2019

A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

Articles & Chapters

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of ...


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan Jan 2019

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 ...


Prosecuting In The Shadow Of The Jury, Anna Offit Jan 2019

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Scholarship

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point ...


The Left's Law-And-Order Agenda, Aya Gruber Jan 2019

The Left's Law-And-Order Agenda, Aya Gruber

Articles

No abstract provided.


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan Jan 2019

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 ...


Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner Feb 2018

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Scholarly Articles

None available.


My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch Jan 2018

My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than ...


Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin Jan 2018

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Articles

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these ...


The Consensus Myth In Criminal Justice Reform, Benjamin Levin Jan 2018

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Articles

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg Jul 2017

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess ...


Illegal Marijuana Cultivation On Public Lands: Our Federalism On A Very Bad Trip, Hope M. Babcock Jun 2017

Illegal Marijuana Cultivation On Public Lands: Our Federalism On A Very Bad Trip, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses ...


Resurrecting Miranda's Right To Counsel, David Rossman May 2017

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 ...


Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse Feb 2017

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

Faculty Scholarship at Penn Law

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 ...


Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman Jan 2017

Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman

Scholarly Articles

A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specificity of the causal link between Goodyear’s misconduct and the amount of the ...


Measuring The Creative Plea Bargain, Thea B. Johnson Jan 2017

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea ...


Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas Jan 2017

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate ...