Law Commons^™

Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini

Pepperdine Law Review

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future …

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

The Mob Lawyer's Constitution, Sara Mayeux

Vanderbilt Law School Faculty Publications

This article reconstructs the constitutional rhetoric of mob lawyers, as well as drug lawyers and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s-the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them. Drawing upon pop-culture sources including archival television footage, magazine features, newspaper coverage, and ghost-written mass-market memoirs, the article pieces together the constellation of soundbites through which mob lawyers disseminated their views. As the subjects of frequent media coverage, these lawyers advanced a coherent and distinctive (if crude) set of ideas about the proper relationship between individuals, …

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

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 …

Creating A People-First Court Data Framework, Lauren Sudeall, Charlotte S. Alexander

Vanderbilt Law School Faculty Publications

Most court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system.

This Article sets forth a methodological framework for reconceptualizing and restructuring court data as "people-first"-centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level …

Standing In Reserve: A New Model For Hard Cases Of Complicity, Nicholas Almendares, Dimitri Landa

Articles by Maurer Faculty

The “hard cases” for the law relating to accomplices deal with the definition of what counts as aiding and abetting a crime. A retailer might sell a murder weapon in the ordinary course of business, while an accomplice might do nothing because their help was simply not needed. How do we distinguish between these cases? The Capitol Riot is a striking example of this sort of hard case because there were so many people involved in so many different and ambiguous ways. Outside of the conceptually easy cases of someone caught on camera making off with property or attacking officers, …

Easy Victims Of The Law: Protecting The Constitutional Rights Of Juvenile Suspects To Prevent False Confessions, Tayler Klinkbeil

Child and Family Law Journal

The inherently coercive nature of custodial interrogation is the very reason the Supreme Court handed down the famous Miranda v. Arizona decision; the court recognized the increased vulnerability that suspects under questioning are subjected to when placed in a situation designed to elicit incriminating information.¹ Legal scholars and judiciaries alike agree that the likelihood of police questioning resulting in a false admission of guilt or self-incriminating statements is disproportionately more probable if the subject of the questioning is a minor.² The constitutional protections that are afforded to juvenile suspects subjected to custodial interrogations are those set out in …

The Effects Of Adverse Childhood Experiences On The Future Of Our Youth, Patrick Cobb

Child and Family Law Journal

22.3 percent.¹ This is the percentage of the population of the United States under the age of 18. These three words should come to mind: growth, family, and safety. Unfortunately, just because these words come to mind, does not mean these are a reality for our youth. The Adverse Childhood Experience (ACEs) study explores our youth’s mental, emotional, and social well-being across a wide sample with some disturbing results.

As we de-code what exactly ACEs entails, we can learn to predict, diagnose, and ultimately prevent negative environments our youth are involved in. Prioritizing these prevention efforts can eventually lead …

Racializing Algorithms, Jessica M. Eaglin

Articles by Maurer Faculty

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It …

The Juris Master: A Proposal For Reducing Excessive Public Defender Caseloads, Blake Comeaux

Senior Honors Papers / Undergraduate Theses

The US public defense system is underfunded, understaffed, and underdelivering on the Constitutional promises of the 6^th Amendment, the right to a fair and speedy trial. This state of our public defense system results in monstrous impacts for indigent defendants nationwide. Through indefinite delays in litigation, being abandoned in jail while sitting on waiting lists for public defenders, and being outright denied representation, indigent defendants are deprived of their rights. Beyond just defendant neglect, our current system puts immense strain on public defenders, prosecutors, and state budgets. In an attempt to combat this current state of affairs, this paper …

Crossfire In The Crosshairs: Why Prosecutions Are Necessary In The Interests Of The Republic, Christopher J. Boosey

Helm's School of Government Conference - American Revival: Citizenship & Virtue

No abstract provided.

State Criminal Laws Could Be A Light In The Dark For The Hidden Victims Of Forced Marriage, Rebekah Marcarelli

Journal of Civil Rights and Economic Development

(Excerpt)

“There’s something you need to know about me . . . I am dead,” said Fraidy Reiss, a survivor of an abusive forced marriage, as she stood alone on a stage, speaking to a crowd. “I know what you’re thinking, [I don’t] look particularly dead . . . you might want to tell that to my family [because] they declared me dead almost thirteen years ago.”

Reiss, who founded the organization Unchained at Last to help forced marriage victims like herself, grew up in an ultra-Orthodox Jewish community in Brooklyn. Right after finishing high school, Reiss was asked to …

Comment: Instilling Ordered Procedure In Assessing Motions For Reduced Sentences Under Section 404 Of The First Step Act, Michael C. Vega

Northern Illinois University Law Review

This Comment discusses the lack of ordered procedure in assessing motions brought pursuant to § 404 of the First Step Act of 2018. For nearly a quarter century, federal cocaine sentencing subjected crack-cocaine offenses dealing in one-hundredth the quantity of drug to the same statutory penalty as powder-cocaine offenses. This disparate treatment of drug offenses impacted primarily African Americans. The Fair Sentencing Act of 2010 reduced the disparity but applied only prospectively. Section 404 of the First Step Act made certain provisions of the Fair Sentencing Act retroactive. In the ensuing years, the federal courts have disagreed on the precise …

Two Countries In Crisis: Man Camps And The Nightmare Of Non-Indigenous Criminal Jurisdiction In The United States And Canada, Justin E. Brooks

Vanderbilt Journal of Transnational Law

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous …

Standards And The Law, Cary Coglianese

All Faculty Scholarship

The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determine liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they …

Criminogenic Risks Of Interrogation, Margareth Etienne, Richard Mcadams

Indiana Law Journal

In the United States, moral minimization is a pervasive police interrogation tactic in which the detective minimizes the moral seriousness and harm of the offense, suggesting that anyone would have done the same thing under the circumstances, and casting blame away from the offender and onto the victim or society. The goal of these minimizations is to reinforce the guilty suspect’s own rationalizations or “neutralizations” of the crime. The official theory—posited in the police training manuals that recommend the tactic—is that minimizations encourage confessions by lowering the guilt or shame of associated with confessing to the crime. Yet the same …

Historicizing The War(S) On Drugs Across National (And Disciplanary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Activist Extremist Terrorist Traitor, J. Richard Broughton

St. John's Law Review

(Excerpt)

Abraham Lincoln had a way of capturing, rhetorically, the national ethos. The “house divided.” “Right makes might” at Cooper Union. Gettysburg’s “last full measure of devotion” and the “new birth of freedom.” The “mystic chords of memory” and the “better angels of our nature.” “[M]alice toward none,” “charity for all,” and “firmness in the right.” But Lincoln not only evaluated America’s character; he also understood the fragility of those things upon which the success of the American constitutional experiment depended, and the consequences when the national ethos was in crisis. Perhaps no Lincoln speech better examines the threats to …

Elderly Or Disabled Registered Sex Offenders: Are They Experiencing Cruel And Unusual Punishment Under Ohio Sex Offender Classification And Registration Laws?, Susana Tolentino

University of Cincinnati Law Review

No abstract provided.

Unacceptable Risk: The Failure Of Georgia’S “Guilty But Intellectually Disabled” Statute And A Call For Change, Logan Purvis

Georgia Law Review

In 1988, Georgia became the first state in the nation to prohibit the execution of intellectually disabled criminal defendants. At the time, this groundbreaking action played a critical role in shaping the national debate surrounding the criminal justice system’s treatment of this group of individuals, culminating in the United States Supreme Court’s own prohibition in 2002. A drafting error in Georgia’s statute, however, created a highly prejudicial process for determining intellectual disability, all but ensuring that the law’s protections are unattainable for those who seek it. Despite this error, Georgia’s process has remained the same since the statute’s enactment with …

Federal Sentencing: The Need For A New Test For The Abduction Enhancement In The Context Of Robbery, Alex Leroy

West Virginia Law Review

The abduction enhancement applied to the crime of robbery is inherently ambiguous; the enhancement reads, “‘abducted’ means that a victim was forced to accompany an offender to a different location.” The lack of a clear definition for “location” has caused a split within the federal circuits, with some circuits interpreting “location” as position and others interpreting “location” as place. This has caused disproportionate sentences for similar criminal conduct within separate circuits, creating the need for a more uniform interpretation of the sentencing enhancement for abduction.

This Note builds upon the work of David J. Sandefer and proposes two additional factors …

Indigenous Self-Government And Criminal Law: The Path Towards Concurrent Jurisdiction In Canada, Michael Michel

Dalhousie Law Journal

This is a special contribution that has not been peer-reviewed.

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. …

Defeating De Facto Disenfranchisement Of Criminal Defendants, Neil Sobol

Faculty Scholarship

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020.

While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Journal of Entertainment & Technology Law

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol

Arkansas Law Review

To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons …

A First Step Back In Time?, Blake Jacobs

West Virginia Law Review

This Note discusses the implications of the United States Supreme Court’s holding in Concepcion v. United States, which left open whether district courts must reanalyze the 18 U.S.C.A. § 3553(a) factors when ruling on a motion to reduce a defendant’s sentence under the First Step Act. The decision settled a dispute between the First, Fifth, Ninth, and Eleventh Circuits, which did not require sentencing courts to consider intervening factual or legal developments; and the Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits which did. However, the Supreme Court’s decision only obligates a district court to consider intervening …

Sanctions As Virtue-Signaling: Transitioning From Symbolism To Reparation For Rohingya Genocide Victim, Kelsey Peden

American University International Law Review

Kyi sat on the banks of the Inya Lake, saying goodbye to the place they said was no longer her home. The government of Myanmar had given her an option: leave or be arrested. She felt lucky to leave; most activists she knew did not get a warning first. A few kilometers away, her parents’ graves sat cleaned, adorned with fresh flowers. She hoped her sister would keep up the task in her absence, but she hadn’t been able to get ahold of her in quite some time. The feeling of the country was getting more concerned—"frantic" she explained, laughing, …