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The Dark Plea: One Of The Most Coercive Abuses Of Power Permitted In The Criminal Justice System, Michael P. Donnelly

Et Cetera

Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.

This article sets down in writing a speech I …

Criminal Legal Reform In New Hampshire: One Law Professor's Activism, Albert E. Scherr

The University of New Hampshire Law Review

Criminal legal reform is a perpetual work in progress. The system itself is, at best, maddeningly imperfect. It too often fails to produce anything close to justice. Structural problems afflict the system in a way that incarcerates too many people, particularly people of color. For example, over the last thirty years, the Innocence Project has demonstrated imperfections in the system caused by faulty eyewitness identification procedures by ineffective assistance of counsel, by prosecutorial misconduct, by shoddy forensic practices and by police behavior that produced false confessions.

That the United States has well over fifty-one independent criminal legal systems frustrates efforts …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Once "the Darth Vader of academic writing,"' American prosecutors are making a comeback. In recent years, "progressive prosecutors" have leveraged prosecutors' one true superpower-lenience-to "reform the criminal justice system from the inside." There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: yes. But there is surely more to say. American criminal law covers a broad array of offenses with vast differences in punitiveness across jurisdictions and courts. And even harsh critics of the system's severity tend to pivot when it comes to …

The (Not So) United States Of Parole: A State-Of-The-Art Review Of Discretionary Release For Individuals Serving Life, Stuti S. Kokkalera, Angelica M. Allison

Journal of Criminal Justice and Law

About one in seven individuals are currently in prison serving a life sentence. A substantial proportion of this incarcerated population have the opportunity for early release through parole. Given the complexity and variety of parole board systems, capturing a comprehensive understanding of parole decision-making is imperative. This article provides a state of the art review of statutory and administrative provisions describing parole practices for individuals serving life sentences were collected and evaluated by employing content analytical techniques. We find that the formalization of discretionary release procedures in statutes, administrative rules, and policy manuals reflects a confluence of perspectives ranging from …

Juvenile Life Without Parole In Pennsylvania: Age, Cognitive Immaturity, And Culpability, Margaret E. Leigey, Marco Granston

Journal of Criminal Justice and Law

While there has been momentum at both the federal and state levels to curtail extreme punishments for justice-involved juveniles (The Campaign for the Fair Sentencing of Youth, 2023), 22 states continue to permit the sentence of juvenile life without parole (JLWOP). Pennsylvania is among them. This essay focuses on judicial rationale in five JLWOP re-sentencing cases in the state, and more specifically, how the appellant’s age and implied adult-level culpability were used by the judge to justify permanent incarceration. In the re-sentencing documents, judges neglected the ample research in the areas of neuroscience and developmental psychology that indicates reduced legal …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

The Georgian Case For Harmless Constitutional Error Reform, John Evan Laughter

Georgia State University Law Review

This Note examines Georgia’s application of harmless error review to constitutional errors and proposes a new standard to remedy deficiencies.

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

Sexual Abuse: A Multi-Faceted Problem, Marcus Venable

LSU Doctoral Dissertations

On average, US citizens have experienced approximately 400,000 sexual assaults per year, which results in enormous immediate and long-term consequences for individuals, as well as society in general.

In the U.S., the principal method of combatting this crime has been the creation of Sex Offender Registries used to notify the public of the identity and location of convicted sex offenders who may be living in proximity to their residence. In addition to the Registry, laws have been passed forbidding convicted sex offenders from residing within buffer zones around areas of high child concentration [schools/parks/etc.].

The efficacy and consequences of these …

The Awareness Of Missing And Murdered Indigenous Women And Girls (Mmiwg): Policy Steps Toward Addressing The Crisis, Meenakshi P. Richardson, Kimberly Klein, Stephany Runninghawk Johnson

American Indian Law Journal

No abstract provided.

A Federal Inmate’S Right To Stay Home, Jordan Thorn

Texas A&M Law Review

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so …

Successive But Not Successful: Does The Aedpa Allow Federal Prisoners To Reassert Previously Presented Claims For Habeas Relief?, Michael P. Bitgood

Texas A&M Law Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unequivocally bars state prisoners from reasserting previously presented claims for habeas relief. Currently, the circuits are embroiled in a disagreement regarding whether the AEDPA also bars federal prisoners in the same way, and federal prisoners’ potentially viable claims for habeas relief hang in the balance. Prior to the Ninth Circuit’s decision in Jones v. United States, six circuits agreed that the AEDPA does bar federal prisoners’ previously asserted habeas claims, but the Sixth Circuit alone disagreed. Now, the Jones decision aligns the Ninth Circuit with the Sixth Circuit’s position. …

Self-Defense And Political Rage, Erin Sheley

Texas A&M Law Review

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

An Apt Analogy?: Rethinking The Role Of Judicial Deference To The U.S. Sentencing Guidelines Post-Kisor, Amy Walker

Fordham Law Review

Since its inception in 1984, the U.S. Sentencing Commission (the “Commission”) has struggled to garner and maintain a sense of legitimacy among federal judges. The tension is both a story about competing expertise between judges and the Commission and competing values, namely uniformity and individuality. In 1993, the U.S. Supreme Court in Stinson v. United States prioritized uniformity by telling lower courts to treat the Commission as they would any other administrative agency. Lower courts—for the most part—faithfully executed this directive until 2019, when the Supreme Court in Kisor v. Wilkie gave them another option, one that seemed to leave …

Seeking Sanctuary: An Analysis Of U Visa Policies In Omaha, Nebraska And Their Impact On Immigrant Communities, Emma Ehmke

Theses/Capstones/Creative Projects

Since 2000, immigrants have been eligible for U visa status if they are a victim of a particular crime and assist law enforcement in criminal investigations. However, challenges arise for numerous reasons with the I-918 Supplement B form, which must be signed by an agency certifier within law enforcement or an attorney’s office. This study examines the policies of six law enforcement agencies and attorney’s offices in the Omaha Metro Area through semi-structured interviews to understand their approach to U visas and the characteristics of successful applications. The study aims to uncover variations in agency procedures and understandings and the …

Putting A Slam On Alcohol Violators Through Dram- How The State Of Ohio Can Improve The Day-To-Day Safety Of Its Residents Through Dram Laws, Steven Iwanek

Honors Projects

In the realm of legal frameworks governing the service and consumption of alcohol, Dram Shop Liability Laws play a pivotal role in holding establishments accountable for the consequences of alcohol-related incidents. These laws, known as dram laws, vary across states, delineating the responsibilities of alcohol servers and establishments in preventing the overconsumption of alcohol and the resultant harm. This examination delves into a comprehensive background of dram laws, particularly focusing on their historical evolution, their present implications, and the imperative need for refinement.

As societal dynamics and patterns of alcohol consumption evolve, so too must the legislative mechanisms designed to …

Good Policing Practices Are Difficult, Even For The Avengers, Melanie Reid

Cleveland State Law Review

Policing, as a topic, is complicated. Many have strong views as to what police should or should not be doing and how effectively they are doing it. Too often policing has become polarized with various perspectives disagreeing as to the future of policing. Black Lives Matter, Defund the Police, and Policing Abolition movements are on one spectrum compared to the Blue Lives Matter Movement or other mayoral or police union initiatives. This is clearly a time to collaborate and learn from the various perspectives to bring hope and change in the future. Lawyers, academics, community members, and police officers alike …

Statement Of The District Task Force On Jails & Justice Before The Committee On The Judiciary And Public Safety Of The Council Of The District Of Columbia: Budget Oversight Hearing For The D.C. Department Of Corrections, Katherine S. Broderick

D.C. Council Testimony

No abstract provided.

Mass Incarceration, Violent Crimes, And Lengthy Sentences: Using The Race-Class Narrative As A Messaging Framework For Shortening Prison Sentences, Eric Petterson

St. Mary's Law Journal

No abstract provided.

Barcoding Bodies: Rfid Technology And The Perils Of E-Carceration, Jackson Samples

Duke Law & Technology Review

Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment.

All Eyez On Rap & Hip-Hop: Analyzing How Black Expression Is Criminalized And The Language Of The Rap Act Of 2022, Maia Young

Washington Journal of Law, Technology & Arts

The Black existence, in the United States of America, has always been regarded as a conditional right. Conventionally, Blackness must always be nonviolent and non-disruptive to safely exist. Because of this, Blackness cannot be confined to restraints and disrupts these conventions with acts of joy and creative expression. Black creativity is both unconventional and sacred. Black creative expression documents, preserves, and unifies cultural lived experiences, from a first-hand lens of those oppressed. Creative and artistic expression celebrates the myriad of stories that are a part of the collective Black experience. Yet, Black creative expression is now being weaponized by prosecutors …

Long-Range Analogizing After Bruen: How To Resolve The Circuit Split On The Federal Felon-In-Possession Ban, Sean Phillips

Fordham Law Review

In 2023, over the course of one week, two U.S. courts of appeals ruled on Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting firearm possession for those convicted of felonies. Both courts applied the U.S. Supreme Court’s “history and tradition” test from New York State Rifle & Pistol Ass’n v. Bruen. In the U.S. Court of Appeals for the Eighth Circuit, criminal defendant Edell Jackson did not succeed. There, the court found that the nation’s history and tradition supported the validity of a law banning firearm possession by felons, regardless of the details of their …

Reflections Of A Non-Abolitionist Admirer Of The Police Abolition Movement, Corey Stoughton

Washington and Lee Journal of Civil Rights and Social Justice

To acknowledge that the abolition movement made reform better is not to reduce the movement to that purpose. For the non-abolitionist, the end of reform is better policing. For the abolitionist, reform is at best “a strategy or tactic toward transformation,” meaning contesting and ultimately eliminating policing. These are not compatible visions. But even if the collaboration between holders of these visions is just a tactical alliance, it is a tactical alliance that is producing good results. Perhaps those good results will lay a foundation for abolition, or perhaps they will seed in abolitionists’ fertile imaginations a positive vision of …

Tort Liability For Physical Harm To Police Arising From Protest: Common-Law Principles For A Politicized World, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts …

Victor Hugo Was Right All Along: Les Misérables, The Tragedy Of A Punitive Parole System, And A Modern Path Forward, Sarah Gerwig

Mercer Law Review

Les Misérables, Victor Hugo’s tragic novel, was published over 160 years ago and yet it continues to capture imaginations and sympathies worldwide. It was made into an award-winning film over a decade ago. But before that, Les Misérables was one of the most popular Broadway musicals ever produced, having been viewed by over sixty million people, even beyond the viewership of other popular renditions in film and television. Despite (or perhaps because of) its heartbreaking themes, audiences sympathize with the main characters’ quest for redemption. How easy, in the story, to see the struggles and barriers Jean Valjean encounters—and …

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

The Right To Violence, Sean Hill

Utah Law Review

Scholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.

Yet the state explicitly authorized private violence against enslaved people …

Circumventing The Fourth Amendment: The Unconstitutional Nature Of Geofence Warrants, Shelby Stender

Utah Law Review

Federal and state law enforcement agencies are using a new tactic for gathering evidence: geofence warrants. These warrants allow law enforcement to gather historical location data collected by third party companies including Google, Facebook, Amazon, and Apple. Armed with a geofence warrant today, law enforcement agencies can track the previous location of an individual at any point from the moment they acquired a cell phone—so long as the location history is turned on. The tactic has grown in popularity since 2019 and has been used to uncover suspects in cases where police had few leads. Troublingly though, the tactic has …

Manufactured State Immigration Emergencies As State Vigilantism, Kate Huddleston

Texas A&M Law Review

President Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—doing so, like Trump, in the context of the border. Governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration, and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state …