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The Common Prosecutor, Melanie D. Wilson

Scholarly Articles

This symposium piece stems from the Loyola University of Chicago Law Journal’s Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences …

Juries, Democracy, And Petty Crime, John D. King

Scholarly Articles

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy. The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury. Despite the textual clarity of the guarantee, the Supreme Court has long recognized …

The New Jim And Jane Crow Intersect: Challenges To Defending The Parental Rights Of Mothers During Incarceration, Carla Laroche

Scholarly Articles

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their …

Movement Constitutionalism, Brandon Hasbrouck

Scholarly Articles

The white supremacy at the heart of the American criminal legal system works to control Black, Brown, and poor people through mass incarceration. Poverty and incarceration act in a vicious circle, with reactionaries mounting a desperate defense against any attempt to mitigate economic exploitation or carceral violence. Ending the cycle will require replacing this inequitable system with the life- and liberty-affirming institutions of abolition democracy. The path to abolition democracy is arduous, but abolitionists can press for change through what I coin “movement constitutionalism.” Movement constitutionalism is the process by which grassroots abolitionist movements shift—through demands and in solidarity with …

Ineffective Assistance Of Counsel In Dna Cases: A Re-Appraisal Of The Effectiveness Of Strickland V. Washington Judges, Albert E. Scherr

Law Faculty Scholarship

The advent of forensic DNA evidence has made possible the prosecution of many crimes that would otherwise be un-prosecutable or that would have been weak cases, if prosecuted. At the same time, forensic DNA technology has raised very substantial concerns about the reliability of evidence previously viewed as the gold standard in proof Wrongful convictions by the Innocence Project and others have established that eyewitness misidentifications, false confessions, bad forensics and mistaken guilty pleas occur. The much lesser known but still very troubling concern is with the performance of defense counsel in cases in which the prosecution has forensic DNA …

On Lenity: What Justice Gorsuch Didn’T Say, Brandon Hasbrouck

Scholarly Articles

This Essay was first published online at 108 Va. L. Rev. Online 239 (2022).

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. …

The Inequity Of Third-Party Bail Practices, Judge Patrick Carroll

Loyola University Chicago Law Journal

For many criminal defendants, a common source of bail funds is their own family or friends. Such individuals typically assist in the expectation that if the defendant complies with court orders and satisfies all court appearances, their money will be returned to them. In revenue-motivated court systems, however, bail funds--even when owned by a third party--are often applied to the defendant's fines and court costs, resulting in the effective forfeiture of the friend or relative's money. This Article reviews the processes of third-party bonds, the risk that a third-party bond will be incorrectly identified as the defendant's asset, and the …

Dna Exonerations And Stakeholder Responses: A Case Of Cognitive Dissonance, Anne Richardson Oakes, Julian Killingley

Tennessee Law Review

The availability of DNA testing developed in the 1980s transformed the ability of prosecutors to secure convictions while providing Innocence Projects with the tools to overturn them. However, DNA exonerations which establish conclusively that a person convicted of a crime is in fact innocent, can represent a major threat to the value systems and therefore the self-belief of stakeholders who acted in good faith and in the genuine but mistaken belief that the exoneree was guilty. This Article reports on the findings of an investigation into stakeholder responses to DNA exonerations between 1990-1999 when DNA evidence was new and more …

Cedaw And Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker And Root Causes Of Abuse, Cheah W. L.

Michigan Journal of International Law

CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only …

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

McGeorge School of Law Scholarly Articles

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

The Common Prosecutor, Melanie D. Wilson

Loyola University Chicago Law Journal

This symposium piece stems from the Loyola University of Chicago Law Journal's Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

JCLC Online

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

Immigration Public Defenders: A Model For Going Beyond Adequate Representation, Matthew Chang

JCLC Online

What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in …

When A Second Change Gets A Second Chance: Reasonableness Review Reigns For Motions Under Section 404 (B) Of The First Step Act On Appeal, Patrick W. Riley

American University Law Review

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine. Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine. In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1. However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act. Those already sentenced under the 100:1 ratio were …

Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington

Upper Level Writing Requirement Research Papers

No abstract provided.

The Trajectory Of Federal Gun Crimes, Jacob D. Charles, Brandon L. Garrett

Faculty Scholarship

Federal gun prosecutions have been a significant part of the federal docket for decades. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution and possession of particular weapons such as machine guns to use by drug traffickers and individual possession of !rearms by felons. Second, we describe how in practice gun charges have adapted to criminal law priorities of Congress and federal prosecutors over time. More recently, they became prominent in connection with immigration prosecutions, while in the 1980s, drug gangs were the priority. During this time, …

Liberty And Just [Compensation] For All: Wrongful Conviction As A Fifth Amendment Taking, Kelly Shea Delvac

Connecticut Law Review

In the United States, over 2,900 people have been exonerated for crimes they did not commit. While some exonerees currently qualify for compensation for their wrongful convictions, less than 40% have received any type of financial support. This Note examines the history of wrongful convictions in America as well as the historical background of the Fifth Amendment. It then looks at the current compensation schemes available to exonerees and analyzes the evolution of takings jurisprudence. This Note argues that a wrongful conviction is a taking of an exoneree’s labor under the Fifth Amendment and, therefore, constitutionally entitles an exoneree to …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Connecticut Law Review

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration, as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

When Jail & Prison Sentences Become Death Sentences: How Willfully Exposing Incarcerated Persons To Covid-19 Amounts To Cruel & Unusual Punishment, Arielle Aboulafia

Human Rights Brief

Eric Warner called his older brother Hank from San Quentin State Prison almost every Sunday. Though the prison only allowed the brothers to speak for fifteen minutes each week, the two spoke about their lives. In June 2021, Eric stopped calling, and Hank became worried. Hank tried to get in touch with the prison. However, his calls were met with a dead-end voicemail each time. He recalls that he “knew, by not hearing anything, that something was not good.” The following month, prison personnel returned Hank’s calls and told him that his brother Eric had been hospitalized. Later that month, …

Capital Punishment And The ‘Acnestis’ Of Its Modern Reformation, Sudarsanan Sivakumar

Human Rights Brief

The term “Capital Punishment” encompasses any penalizing punishment that results in the death of people accused of committing a crime.1 This damnation dates back to the Eighteenth Century B.C. in the “Code of Hammurabi,” a misemployed code that ensured the death penalty for twenty-five distinct crimes. People convicted of crimes were made to suffer for their actions in horrific ways, including being burnt alive and drowning.2 Since then, death by hanging has been the conventional method for capital punishment in most of the world.

The Havoc Death Wreaks: Civil Rights Challenges To Capital Punishment, Bailey D. Barnes

Faculty Publications

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty …

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Against Criminal Law Localism, Brenner M. Fissell

Maryland Law Review

No abstract provided.

A Trauma-Centered Approach To Addressing Hate Crimes, Avlana Eisenberg

Journal of Criminal Law and Criminology

A dominant justification for hate crime laws is that they serve a crucial expressive function—sending messages of valuation to victims, and of denunciation to defendants. Yet, as this Essay will demonstrate, the focus on criminalizing hate—through the enactment of either sentencing enhancements or stand-alone hate crime statutes—has resulted in a thin conception of messaging that fails to recognize the limitations of the criminal law in addressing psychic harm.

This Essay argues that a more robust approach to addressing hate crimes must consider alternatives—beyond incarceration—that would center the trauma associated with hate crimes. This includes restorative justice models that might benefit …

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …