Digital Commons Network^™

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

Sb 407 - Sentencing And Punishment, Abigail L. Howd, Alisa M. Radut

Georgia State University Law Review

The Act provides comprehensive reform for offenders entering, proceeding through, and leaving the criminal justice system. The Act requires all superior court clerks to provide an electronic filing option, and it requires juvenile court clerks to collect and report certain data about juvenile offenders to the Juvenile Data Exchange. In addition, the Act creates the Criminal Justice Coordinating Council and the Criminal Case Data Exchange Board. The Act also changes the grounds for granting and revoking professional licenses and drivers’ licenses to offenders and modifies the provisions relating to issuing citations and setting bail. Inmates of any public institution may …

Hb 673 - Motor Vehicles And Traffic, Brandon M. Kopp, Caleb L. Swiney

Georgia State University Law Review

The Act prohibits holding any electronic device or using text-based communication while driving. Drivers are further prohibited from watching or creating videos. These prohibitions exclude: electronic headsets; smart watches; navigation systems; dash cam systems; and programs that convert voice messages into text messages. Commercial vehicle drivers are prohibited from using more than a single button to engage in voice communication or reaching for a communication device in an unsafe manner. Violators will be fined and assessed points to their license based on the amount of times that they have previously violated this Act. Notably, these provisions do not apply when …

Hb 701 - Public Officers And Employees, Michael C. Freeman Jr., Monica Laredo Ruiz

Georgia State University Law Review

The Act amends Georgia’s statute to give state employers the authority to drug test certain applicants to various public positions. The Act adds opioids, opioid analgesics, and opioid derivatives to the list of drugs for which state employers may screen.

The Eric Garner Incident: Sentinel Calls For Greater Scholarly Support In Policymaking, Joe D. Mazza

Journal of Criminal Justice and Law

The Eric Garner incident serves as a sentinel event exposing weakness in our system of policing low-level offenses. The New York Police Department policy at the center of this encounter lacked a foundation of sound evidence. Administrative mandates forced officers to make a custodial arrest instead of releasing a low-level offender in the field. Combined, they created a condition ripe for tragic results. Custodial arrests should serve important public interests, but none are apparent here. This incident presents a call for greater scholarly partnerships with police and other stakeholders to provide studies with evidence on which better public policy can …

Measuring Disproportionate Treatment In Policing: One Department’S Experience, Heidi S. Bonner, Michele Stacey

Journal of Criminal Justice and Law

Detecting disparate impact in policing practice is essential, but those tasked with developing such inquiry face significant challenges in designing analyses. Racial profiling research has also been plagued by an inability to gain consensus regarding valid comparison groups – commonly termed the “denominator problem” in benchmarking analyses. The current inquiry details the process and outcome of using the disproportionality index (Dolan Consulting Group, 2016) to investigate several enforcement actions at a midsize department in the southeastern United States. The findings highlight the importance of combining the appropriate benchmark with the appropriate level of analysis, and the need for more scholarly …

Maine Sexual Assault Kit Study, Alison Grey, Erika Arthur, Viacheslav Tomenko, George Shaler Mph, Elisabeth Snell

Justice Policy

The Cutler Institute recently released the Maine Sexual Assault Kit (SAK) Study Report. This report was produced for the Maine Coalition Against Sexual Assault (MECASA). In 2018 MECASA contracted with researchers at the Cutler Institute, with funding in part from a grant from the Office on Violence Against Women STOP Violence Against Women Formula Grant Program, through the Maine Department of Public Safety.

Researchers employed a mixed-methods approach to gather comprehensive data about the current status of sexual assault kits in Maine; the challenges and successes of processing and storing kits in Maine; and nationally recognized best practices.

Findings from …

Conspiracy: Contemporary Gang Policing And Prosecutions, Keegan Stephan

Cardozo Law Review

Part I of this Note reviews gang policing before Morales, explains the vagueness, equal protection, and policy and custom doctrines that helped shape gang policing, and details the practices of contemporary gang policing. Part II argues that contemporary gang policing violates equal protection under the innovative showing of discriminatory intent found in Floyd v. City of New York, and that contemporary gang policing violates both prongs of the vagueness doctrine when viewed in its totality-at least where it is proscribed by statute. Part III notes that the vagueness doctrine has historically been applied only to statutory law and …

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

287(G) Agreements In The Trump Era, Huyen Pham

Washington and Lee Law Review

No abstract provided.

Obscured Boundaries: Dimaya's Expansion Of The Void-For-Vagueness Doctrine, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Vasquez V. Foxx: Brief Of Eighteen Scholars As Amici Curiae In Support Of Petitioners, J. J. Prescott

Appellate Briefs

Amici are eighteen scholars across six disciplines whose work includes the leading empirical studies of persons convicted of sexual offenses and the laws applied to them. The Appendix identifies them and describes their work.

Amici believe it critical that judicial decisions affecting constitutional rights be grounded on an accurate understanding of empirical realities. At the very least, they should not propagate misunderstandings. Unfortunately, such misunderstandings are commonplace and often traceable to language in early opinions of this Court. The Seventh Circuit opinion in this case is an example. It relies on mistaken assumptions about both the re-offense risks posed by …

Reforming Restrictive Housing: The 2018 Asca-Liman Nationwide Survey Of Time-In-Cell, Judith Resnik, Anna Vancleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine Mccarthy, Jenny Tumas, Annie Wang

Other Scholarship

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of …

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal needs of …

Smart Devices In Criminal Investigations: How Section 8 Of The Canadian Charter Of Rights And Freedoms Can Better Protect Privacy In The Search Of Technology And Seizure Of Information, Lee-Ann Conrod

LLM Theses

This thesis examines the jurisprudence from the Supreme Court of Canada (SCC) on informational privacy under section 8 of the Canadian Charter of Rights and Freedoms as it relates to searches of technology in the context of criminal investigations. The development and use of technology in criminal investigations will be detailed along with an overview of the current state of the law in this area. Challenges with the interpretation of section 8 demonstrate a prevalent uncertainty. This thesis proposes a new approach for the SCC to apply to cases where technology intersects with section 8 of the Charter. The proposal …

Trafficked In Texas: Combatting The Sex-Trafficking Epidemic Through Prostitution Law And Sentencing Reform In The Lone Star State, Madison T. Santana

Vanderbilt Law Review

American law has historically treated prostitution as a victimless crime, a moral trespass between two consenting individuals, rather than a potential act of violence, a product of fraud or coercion. However, growing awareness of the international sex-trafficking epidemic has brought long-settled prostitution law once more under the critical eye of academics and lawmakers as a potential tool in curbing the stillgrowing demand for illicit commercial sex. Whether prostitution law reform may in fact be effective remains a matter of academic debate in the United States; however, such reform has gained substantial ground abroad, with compelling results. This Note argues for …

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

A "Reasonable" Expectation Of Sexual Privacy Inthe Digital Age, Moira Aikenhead

Dalhousie Law Journal

Two Criminal Code offences, voyeurism, and the publication of intimate images without consent, were enacted toprotect Canadians' right to sexual privacy in light of invasive digital technologies. Women and girls are overwhelmingly targeted as victims for both of these offences, given the higher value placed on their non-consensual, sexualised images in an unequal society.Both offences require an analysis ofwhether the complainant was in circumstances giving rise to a reasonable expectation of privacy, and the use of this standard is potentially problematic both from a feminist standpoint and in light of the rapidly evolving technological realities of the digital age. This …

The Constitutionality Of Classification: Indigenous Overrepresentation And Security Policy In Canadian Federal Penitentiaries, D'Arcy Leitch

Dalhousie Law Journal

This article examines one component of the Correctional Service of Canada's (CSC) risk classification scheme. The CSC uses the Custody Rating Scale (CRS), a 12-item actuarial instrument, to measure risk and to provide security classification recommendations. Empirical data shows that while CRS recommendations may have some predictive validity, certain of the 12 items the CRS includes do not, particularly for Indigenous prisoners. This article makes the case that the inclusion ofsuch items in the CRS violates prisoner's rights under section 7 of the Charter by depriving them of liberty in a manner that is arbitrary and overbroad. Habeas corpus is …

Farewell To The Felonry, Alice Ristroph

Faculty Scholarship

No abstract provided.

Reconciling Brady And Pitchess: Association For Los Angeles Deputy Sheriffs V. Superior Court, And The Future Of Brady Lists, Ryan T. Cannon

San Diego Law Review

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists”; a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations—to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including …

Prosecutors Who Police The Police Are Good People, Vida B. Johnson

Fordham Law Review Online

In 2001 Professor Abbe Smith asked if a person could be both a good prosecutor and a good person. Her answer was, essentially, “no.” My answer in 2018 is that only a prosecutor who focuses on the powerful, and particularly who is willing to prosecute police who do wrong, can be good.

Good Person, Good Prosecutor In 2018, Abbe Smith

Fordham Law Review Online

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?”1 I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018.

Culture, Socialization, And Firearms Violence In The United States, Jennifer L. Lanterman, Sarah J. Blithe

Qualitative Criminology (QC)

"Firearm violence persists in the United States despite innumerable social, political, and economic changes throughout the 20th and early 21st centuries. Collaborative Event Ethnography was used at seven gun shows in three regions of the United States to explore childhood socialization into firearm culture via intergenerational communication of values and views regarding violence, safety, and the use of firearms. Children were observed at all gun shows engaged in activities ranging from standard play to potentially dangerous activity in an environment characterized by bias and controversy. The findings support social learning theory and provide some insight into the role of culture …

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 …

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.

Collateral Consequences And Criminal Justice: Future Policy And Constitutional Directions

Marquette Law Review

National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. …

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. …