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Reimagining Prosecution: In Search Of The True Progressive, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal justice system. At least ninety percent of all criminal cases are prosecuted on the state level, and in all but five jurisdictions, the chief prosecutor (also known as the district attorney) is an elected official. Most district attorneys run unopposed and serve for decades. However, in recent years, a number of incumbent district attorneys have been challenged and defeated by individuals who pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system. These so-called “progressive prosecutors” have enjoyed some …

Arrests As Guilt, Anna Roberts

Faculty Scholarship

No abstract provided.

Lead Us Not Into Temptation: A Response To Barbara Fedders's Opioid Policing, Anna Roberts

Faculty Scholarship

No abstract provided.

Evidence On Fire, Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy …

Judging Risk: The Use Of Risk Assessment In Sentencing, Brandon L. Garrett, John Monahan

Faculty Scholarship

No abstract provided.

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.

The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article argues that police disciplinary appeals serve as an underappreciated barrier to officer accountability and organizational reform. Scholars and experts generally agree that rigorous enforcement of internal regulations within a police department promotes constitutional policing by deterring future misconduct and removing unfit officers from the streets. In recent years, though, a troubling pattern has emerged. Because of internal appeals procedures, police departments must often rehire or significantly reduce disciplinary sanctions against officers who have engaged in serious misconduct. Little legal research has comprehensively examined the appeals process available to officers facing disciplinary sanctions. By drawing on a national dataset …

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Note: Decarceration In A Mass Incarceration State: The Road To Prison Abolition, Robert H. Ambrose

Mitchell Hamline Law Review

No abstract provided.

Stop In The Name Of Love: Putting An End To The Felony Prosecution Of Adolescent Sexting, Angela Bailey, Laura Heinrich

Mitchell Hamline Law Review

No abstract provided.

Incapacitating Errors: Sentencing And The Science Of Change, M. Eve Hanan

Scholarly Works

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a …

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

Scholarly Works

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

Juveniles, Mass Incarceration, And Why "Raising The Age" Is Not Enough, Kenya Barbara

Public Interest Law Reporter

No abstract provided.

Exploring Locus Of Control In Offender Cognition And Recidivism Paradigms, Anistasha Lightning, Danielle Polage

All Master's Theses

Working with four Washington State county jails to administer surveys to currently incarcerated inmates, we investigated locus of control and beliefs in the likelihood of continued legal involvement as possible antecedents to criminal recidivism. The surveys examined whether there was any connection between legal involvement frequency and the externalization of locus of control. We investigated external locus of control with specific respect to involvement with the law, the prospect of future incarceration, and feelings concerning the overall cause of original and/or sustained legal involvement utilizing the Revised Causal Dimension Scale (McAuley, Duncan, & Russell, 1992). We identified statistically significant interactions …

Arrests As Guilt, Anna Roberts

Faculty Publications

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrests in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences …

Discipline And Policing, Kate Levine

Faculty Publications

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Faculty Publications

(Excerpt)

In “Opioid Policing,” Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this …

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner

Scholarship@WashULaw

Three successive presidential administrations have opposed immigrant sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigration enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular history of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridical fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driving this longstanding …

Algorithms & Instruments: The Effective Elimination Of New Jersey’S Cash Bail System And Its Replacement, David Reimel Iii

Penn State Law Review (2003 - Present)

Until 2017, every state conditioned pretrial release on cash bail. Judges across the United States predicted the risk individuals posed of failing to appear and the danger to the community. As a result, indigent individuals waited in jails merely because they could not afford their bail. In 2017, New Jersey spearheaded the movement to change how the bail system operates by passing the Criminal Justice Reform Act (“CJRA”), which created an objective decision-making tool called the Public Safety Assessment.

Today, New Jersey judges are no longer required to speculate about the future decisions of individual defendants. Instead, the Public Safety …

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 …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.

Long Term Effects Of Involvement In The Criminal Justice System: Mitigating Collateral Consequences & Tackling Voter Disenfranchisement, Symposium Session 1, Wesley Caines, Lucy Cutolo, Kendea Johnson

Cardozo Journal of Equal Rights & Social Justice

The symposium examines the long-term effects of involvement in the criminal justice system, focusing on collateral consequences and voter disenfranchisement. It emphasizes the need for both prosecutors and defense attorneys to address these consequences early in criminal cases, as they significantly impact individuals' lives beyond direct legal penalties. The discussion highlights the importance of holistic approaches to mitigate these effects and advocates for systemic changes to reduce disparities and support successful reintegration into society.

Taking Data, Michael C. Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Harm, Sex, And Consequences, India Thusi

Articles by Maurer Faculty

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism …