Digital Commons Network^™

The War On Cannabis, Marla Zappa

Public Interest Law Reporter

Federal legalization of marijuana has the potential to drastically reform the criminal justice system as thousands of Americans face lifelong penalties for simple drug offenses, especially communities of color who are prosecuted at much higher rates compared to white individuals.

Today, possession of marijuana is the leading drug offense for which Americans are arrested.¹ Every year approximately 550,000 individuals are arrested for cannabis offenses, typically possession.² This is because marijuana is the most common illicit drug used in the United States.³ In 2021, over 52.2 million Americans consumed cannabis in some form.⁴ Across the population, marijuana …

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

What A Waste: The Prosecution Of Hazardous Substances Crimes During The Trump Administration, Joshua Ozymy, Ph.D., Melissa Jarrell Ozymy, Ph.D.

Public Interest Law Reporter

The Trump Administration went to great lengths to roll back environmental regulatory and enforcement efforts. Yet, researchers know very little about the impact of the Administration on the criminal prosecution of hazardous substance crimes. This study utilizes content analysis of EPA criminal investigations leading to prosecution during the Trump Era to analyze charging and sentencing patterns and illustrate the greater themes that emerged during this period. Prosecutions are dominated by hazardous waste (48%), pesticide (41%), and lead-based paint (11%) crimes. Results show prosecutors were able to pursue crimes involving significant harm and culpable conduct, while securing over $90 million in …

Coercion, Control, And Criminal Law: Rethinking Accomplice Liability And Duress For Intimate Partner Violence Survivor-Defendants, Rachel Still

Public Interest Law Reporter

No abstract provided.

Curing Terry's Colorblindness, Ilan Friedmann-Grunstein

Publications

Scholars, policymakers, and advocates have long bemoaned the Supreme Court's colorblind Fourth Amendment jurisprudence. The Court has alternatively ignored or condoned racially discriminatory searches and seizures, allowing government agents to engage in widespread racial profiling. Proposed reforms have typically focused on doctrinal solutions that would limit police discretion or called for the reversal of Terry v. Ohio.

This Article provides a comprehensive doctrinal, regulatory, and legislative solution to racial discrimination in police investigations. It proposes a novel solution: adopting recent jury selection reforms aimed at preventing racism injury selection to combat racial profiling in searches and seizures. Several states, …

Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas

Journal of Race, Gender, and Ethnicity

This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …

Public Accommodations Parlance, Grace Vedock

Michigan Law Review

Anxieties linger in the interstices of public accommodations law. 303 Creative LLC v. Elenis is the latest in a string of First Amendment cases that call into question the common law duties underpinning public accommodations doctrine. Many commentators have speculated about the decision’s immediate implications. But criticism of the decision is incomplete. This Note takes 303 Creative as a welcome opportunity to reevaluate basic assumptions about how property law operates in relation to constitutional norms. Beginning with the provocative assertion that no legal axiom is infallible, this Note examines permutations of public accommodations and First Amendment law as rhetorical threads …

Can Policing Be Purged Of White Supremacy? A First Amendment Inquiry, Jessica Tilton

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

Police Diversity Theory, Trevor George Gardner

Scholarship@WashULaw

In light of both the tragic death of Tyre Nichols in Memphis at the hands of Black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent.

Responsive to the conceptual framework for police diversity theory, the Article …

Shades Of Justice: Exploring Colorism In The Hispanic Community And Its Legal Battle For Equity, Christel A. Infante

Honors Undergraduate Theses

This thesis focuses on the racial disparity within the Hispanic and Latinx communities as injustices exist within the community and the workplace. Racial disparities in the United States have been a persistent and deeply rooted issue that has plagued the nation for centuries. Despite significant progress in civil rights and anti-discrimination legislation, disparities in areas such as education, employment, and criminal justice persist. Understanding the factors contributing to these disparities is essential for addressing systemic inequalities and fostering a more just society. The analysis of this thesis primarily focuses on the cases and ramifications of Hispanic persons within the workplace, …

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Consent Searches As Police Violence, David B. Owens

Articles

Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context …

Using A "Moves To Innocence" Approach To Dissect And Debunk The Claim That Critical Race Theory Is Antisemitic, Diane Kemker

Lewis & Clark Law Review

In the United States, law and policy have most frequently reflected dominant white Christian majority interests. Critical Race Theory (CRT) offers powerful tools for understanding our history and situation, including that of American Jews, and how the social positions and interests of American Blacks and Jews, real and perceived, have intersected, sometimes aligning, sometimes diverging, and sometimes conflicting. And yet, among other charges leveled against it, Critical Race Theory is frequently accused of being antisemitic.

Intentionally or not, this charge delegitimizes and discredits CRT, and therefore advances the aims of all who oppose it for any reason, including white supremacists …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Corporate Racial Responsibility, Gina-Gail S. Fletcher, H. Timothy Lovelace Jr.

Faculty Scholarship

The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation to extreme progressivism at shareholders’ expense. Others, while thinking corporate engagement was long overdue, critiqued corporate commitment as insincere.

Drawing on historical evidence surrounding the passage of Title II of the Civil Rights Act of …

The "New" Drug War, Jennifer D. Oliva, Taleed El-Sabawi

Articles by Maurer Faculty

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure …

Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

Who Bears The Burden When Prison Guards Rape?, Meredith B. Esser

Scholarly Works

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons ("BOP"). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution ("FCI") Dublin, also known as the "rape club," resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission's new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early …

Amended Brief Of Amici Curiae Freedom Project, Civil Survival, Fred T. Korematsu Center For Law And Equity, King County Department Of Public Defense, And Washington Association Of Criminal Defense Lawyers In Support Of Petitioner, Jessica Levin, Melissa Lee, Robert S. Chang, Prachi Dave, Ronald A. Peterson Law Clinic, Katherine Hurley, Brian Flaherty, Mark Middaugh

Center for Civil Rights and Critical Justice Advocacy

No abstract provided.

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

Seeking Higher Ground: Developing A Tribal Model Code For Disaster And Emergency Management In A Complex Jurisdictional Environment, Brian Candelaria

American Indian Law Journal

“The teepee is much better to live in;

always clean, warm in winter, cool in summer; easy to move. The white man builds his big house, cost much money, like big cage, shut out sun, can never move; always sick. Indians and animals know better how to live than white man; nobody can be in good health if does not have all the time fresh air, sunshine, and good water.”

- Chief Flying Hawk[1]

In 2019, I opened my submission for the Sovereignty Symposium’s Doolin Award with the statement above. The entry was accepted and reprinted in the American …

Disinfecting The Criminal Legal System Of Punitive Deterrence, Joseph Dole

DePaul Journal for Social Justice

No abstract provided.

How The 2020 Protests Raises The Issues Of Policing Tactics, Brianna Knibbs

Capstones

With the 2020 Racial protests spreading all across the United States in the wake of the killing of George Floyd, the issues of police tactics used against protesters have raised a lot of questions on how it plays a role into the systematic police racism. In addition to the challenges for those who try to sue police departments.

Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie

Sturm College of Law: Faculty Scholarship

Over the past two decades, the scope of Title IX has expanded drastically and now includes the investigation and adjudication of sexual misconduct cases through campus tribunals. Beginning in 2011, the Obama Administration, through a “Dear Colleague Letter” and subsequent guidance, initiated this process by establishing guidelines that required schools to develop and implement policies and procedures for the handling of sexual misconduct cases. Following the publication of the Obama-era guidance, schools scrambled to ensure compliance with the federal guidance, which led to a myriad of applications by universities. Unfortunately, the fallout from the 2011 guidance was widespread litigation initiated …

Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Essay critically analyzes the “anti-woke” message deployed by the Conservative Political Action Conference’s (CPAC) 2023 annual meeting’s poster—the suggestion that awake is good and its synonym woke is bad—with the goal of establishing the importance of CRT in general and in education more specifically. This work shows how critical theories are key to deconstructing disingenuous messaging about the meaning of words, theoretical constructs, and historical realities.

The Work first elucidates that the meaning of awake, as utilized in myriad fields, addresses the concept of consciousness—awareness of injustices in society. Second, the Essay historicizes the origins and uses of the …

The Federal Government's Role In Local Policing, Farhang Heydari, Barry Friedman, Rachel Harmon

Vanderbilt Law School Faculty Publications

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use offorce, racial discrimination, and the …

Civil Rights Clinic Wins Historic Louisiana Case Ending Solitary Confinement Of Individuals Awaiting Death Sentences, Betsy Ginsberg, Cardozo Civil Rights Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Should an incarcerated person who has been sentenced to death be required to live out the rest of his or her life in solitary confinement? Not according to the Cardozo Civil Rights Clinic, which recently won a historic settlement changing policy in Louisiana prisons.