Digital Commons Network^™

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Incarceration Reimagined: A Diversionary Option For Serious Felony Offenders, Jane Mitchell

Kentucky Law Journal

No abstract provided.

Guilty Until Proven Innocent: An Analysis Of Racial Disparities In Civil Asset Forfeiture Seizures, Kelsey O'Callaghan

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Shadow Defendants, Mariam A. Hinds

Faculty Scholarship

Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …

The Uptake Puzzle In Expungement Of Criminal Records, Jessica Steinberg, Elenore Wade

Indiana Law Journal

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a …

The Constitutionality Of Assisted Outpatient Treatment, E. Lea Johnston

UF Law Faculty Publications

States are increasingly turning to assisted outpatient treatment (more accurately called preventive outpatient civil commitment, or POC) to ameliorate the mental health and homelessness crises. These laws authorize court-ordered community treatment for individuals with mental illnesses and histories of treatment noncompliance. The treatment aims to prevent psychiatric deterioration before it leads individuals to endanger themselves or others. Affected individuals pose no immediate danger, typically can make rational treatment decisions, and may reside in the community. These laws dramatically extend states’ means of social control and cannot be easily justified by traditional understandings of state police power or parens patriae commitment …

Criminal Background Checks: Implications For Discrimination And Crime, Murat C. Mungan

Faculty Scholarship

Criminal background checks have recently attracted the attention of academics and policy makers alike. Recent laws and policies, like “ban the box” and expungements, focus on the availability of criminal background information as well as the permissibility of using this type of information. Quite surprisingly, policies about the content of the information –whose permissibility and availability are questioned by recent work– is not scrutinized as much.

In this article, I investigate the informational quality of existing background checks. For this purpose, I review the history and evolution of traditional criminal background checks. These checks rely on ‘rap sheets’ –documents containing …

Survival Of The Social Interest: Redefining The Bruen Standard To Protect Women From Violence Through United States V. Rahimi, Katelyn M. Sundstrom

Lewis & Clark Law Review

This Note explores the intersection of gun rights and gender-based violence within the U.S. legal system. It delves into the pervasive issue of domestic violence and explores the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which rejected the use of “interest balancing” in evaluating gun regulations in favor of a purely historical and traditional approach. This shift placed significant legal scrutiny on existing firearm restrictions, including 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms.

The analysis centers on the 2023 case United States v. Rahimi, …

Federal Compassionate Release Principles: Defining The Contours Of Analyses Under The “Other Reasons” Bucket, Hannah Jacobs

American University Law Review

The U.S. Sentencing Commission’s new policy statement regarding 18 U.S.C. § 3582(c)(1)(A) informs federal judges’ sentence reduction analyses. The statement expands the extraordinary and compelling reasons for which district courts may grant compassionate release under the statute’s “Other Reasons” provision. A proper application of this catchall provision requires striking a balance between the broad judicial discretion codified in that provision and the flexibility, certainty, and fairness principles Congress and the Sentencing Commission intended to shape modern compassionate release. This discretion is bound by statutory, policy, and prudential considerations, including fidelity to the totality-of-the-circumstances framework and a case-by-case approach to individual …

Promoting Public Health And Public Safety By Ending The Exclusion Of Incarcerated Children From Access To Medicaid, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

This essay is a response to Professor Den Houter's article entitled Children are Not Inmates in which she effectively calls eliminating the exclusion of indigent incarcerated children from Medicaid coverage pursuant to the Medicaid Inmate Exclusion Policy (MIEP). This essay affirms and builds upon Professor Den Houter's recommendation. Part I of this response provides additional support for why ensuring system-involved youth receive timely, uninterrupted, high-quality behavioral health services is critical to improving both public health and public safety. Part II analyzes the benefits and risks attendant to excluding indigent incarcerated children from the MIEP. Part III proposes the implementation of …

The Fourth Amendment's Hidden Intrusion Doctrine, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seek to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This paper demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In …

Terrorizing Who? Luigi Mangione's Terrorism Charge And The Threat To Capital, Julia Hopkins

Public Interest Law Reporter

No abstract provided.

Ignored By The Legislature, Failed By The Courts: The Uncertain Path Toward Relief For Youth Sex Offenders In Illinois, Lindsay Nicholas

Public Interest Law Reporter

No abstract provided.

Disposability And Survival: The Legal And Social Marginalization Of Black Transwomen, Rachel Still

Public Interest Law Reporter

The criminalization of Black transwomen emerges not as an incidental consequence of law but as a deliberate, structural process intertwined with a long history of racial, gendered, and class-based oppression. From the horrors of slavery to contemporary policing, the state has consistently defined and regulated Black trans bodies through a lens of disposability. This article explores the historical and contemporary forces that contribute to the marginalization and criminalization of Black transwomen, emphasizing how race, gender, and socio-economic status intersect to create a landscape of legal violence that continues to shape their lives and deaths.

The experiences of Black transwomen reveal …

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender

Touro Law Review

Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …

Breaking The Chain: How An Alternate Dispute Resolution Process Can Be Used In The Criminal Justice System For First-Time Non-Violent Criminal Offenders, Leora Perlstein

Cardozo Journal of Conflict Resolution

The criminal justice system is deeply rooted in our history. There are traditional views on how it should be run and conducted. “Founded on the concept that crimes against an individual are crimes against the state, our justice system prosecutes individuals as though they victimized all of society.” Traditionally, when individuals commit a crime, they go through the process of receiving a ticket—or if they commit a particular violent crime they will be immediately arrested—and then they go through the process of appearing in court for an arraignment in which they are “read the charges against [them]” and are either …

Plea Tracking In The Durham County District Attorney’S Office: Second Report On Superior Court Cases Pled From April 2021 To November 2023, Kelly Evans, Elizabeth Gifford, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

Georgia (Rico) On My Mind, Tamika Griffin Moses

Law Faculty Publications

The Georgia RICO indictments against President Donald Trump, the Stop Cop City Protestors, and hip-hop entertainer Young Thug prompted debates regarding the proper scope of prosecutorial discretion and the legitimacy of the charges. This Article adds two critiques to the discourse.

First, it posits that the expansive scope of the Georgia RICO statute not only provides cover for prosecutors to legitimize their charging decisions, but it also permits other system actors, particularly legislators, to challenge the legitimacy of the prosecutions in which they disagree. By connecting the Georgia RICO Indictments to the ongoing debate regarding the proper scope of prosecutorial …

No Knock? No Case: Prosecutorial Deterrence As A Countermeasure To No-Knock Warrants, Tamika Griffin Moses

Law Faculty Publications

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy …

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

Adults Drug Court Model's Review: A Case Study, Byron R. Titus

Antioch University Dissertations & Theses

In 1989 Dade County, Florida, the so-called “War on Drugs” was in full swing. As a result, drug courts were created, acting as a diversion program for the many people subsequently caught up in this “war.” Since then, such “specialty courts” have proliferated across the planet. In some cases, local versions have been adopted to adjust to their unique population, culture, risk, and needs. This dissertation is a case study that reviews three Intensive Probation Supervision Programs (IPSP). These IPSPs identify a drug court in their state or country before it becomes a “certified drug court” (now more often referred …

Reassessing Criminogenic Risk: How Trauma-Informed Assessment More Accurately Predicts In-Prison Behavior Than Traditional Models, Bree E. Derrick

Antioch University Dissertations & Theses

Criminogenic risk-needs assessment is the cornerstone of recidivism reduction models in the correctional sector. Despite decades of using criminogenic risk-need tools, recidivism outcomes remain stubbornly high in the U.S. This non-traditional dissertation explored how traditional criminogenic assessments could be improved with the addition of measures of childhood adversity and maltreatment. This study found that the prevalence of ACEs was significantly greater in an adult prison population of 1,522 in a rural, western state than in the general public. Utilizing logistic regression, this research also found that ACEs were better predictors of in-prison misconduct than traditional criminogenic risk-needs assessments, although traditional …

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Punishing Violence, Shima Baradaran Baughman

American University Law Review

The American criminal justice system doles out the harshest punishments in the world. It is infamous for its protracted criminal sentences and prodigious criminal code. But what most scholars and policymakers overlook is that the United States punishes only a fraction of the total serious crime that occurs in the country—including violent crime.

Approximately twenty million serious crimes occur in America each year, but only about half of these are reported to police. Of those reported, the police make arrests for an average of only twenty percent of serious crimes, and only ten percent of arrests result in a conviction. …

Ecarrots: Prison Control And Profits From Correctional Tablets, Justin Iverson

Scholarly Works

In recent years, tablets have gained tremendous popularity behind bars for their ability to expand access to educational and rehabilitative services for people in prison. However, there are downsides to tablet implementation, including high costs at the expense of a captive population and shifting power dynamics resulting in possible volatility. This Article examines the use of correctional tablets in jails and prisons as mechanisms for administrative control and profit-making in an era of beleaguered correctional budgets. It also considers legal and policy implications related to the disproportionately negative impact of the introduction of tablets on people in poverty, increased dependency …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …