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Screening And Charging Practices Of Three Mid-Sized Jurisdictions, Deason Criminal Justice Reform Center

Deason Center Reports

Understanding how prosecutors make their screening and charging decisions is essential to criminal legal reform. This preview report is the first in a series of publications that explores the screening and charging practices of prosecutors in three mid-sized jurisdictions. Through an innovative mixed-methods empirical study, the series provides a holistic account of prosecutors’ charging practices.

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

Military Service And Offending Behaviors Of Emerging Adults: A Conceptual Review, Christopher Salvatore, Travis Taniguchi

Department of Justice Studies Faculty Scholarship and Creative Works

Focusing on the United States, this paper examines the impact of military service for the cohort of individuals that have experienced the social factors that characterize emerging adulthood as a unique stage in the life course. We argue that military service, as a turning point, may act differently in contemporary times compared to findings from past research. This difference is driven by changes in military service, the draft versus volunteer military service, and the prevalence of emerging adulthood. As a background, we describe emerging adulthood, examine how emerging adulthood relates to crime and deviance, explore the impact of military life …

The Guiding Hand Of Counsel, For A Price: Juvenile Public Defender Fees And Their Effects, Hannah R. Gourdie

William & Mary Law Review

When he was thirteen, Jonathan, a teenager from New Hampshire, was charged with simple assault after a fight with his father. During his hearing in juvenile court, his father refused to pay the $275 New Hampshire public defender fee, and Jonathan—unable to afford the price of counsel—waived his right to an attorney. He was placed on probation and struggled to meet his probation requirements, resulting in his arrest for probation violations. Because the court was deciding whether to detain Jonathan, Jonathan was appointed a juvenile defender. The attorney brought Jonathan’s unstable home life to the judge’s attention, and the judge …

Deportation Arrest Warrants, Lindsay Nash

Articles

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by …

Transparency In Plea Bargaining, Jenia I. Turner

Notre Dame Law Review

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than ninety-five percent of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining—its lack of transparency—has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining …

Discovering Racial Discrimination By The Police, Alison Siegler, William Admussen

Northwestern University Law Review

For decades, it was virtually impossible for a criminal defendant to challenge racial discrimination by the police or prosecutors. This was because in United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court set an insurmountable standard for obtaining discovery in support of a selective prosecution claim. Equating the roles of prosecutors and law enforcement officers, lower courts applied this same standard to claims alleging racial discrimination by the police. This high standard led courts to deny discovery and stifle potentially meritorious claims. Recently, criminal defendants have initiated a wave of challenges to “fake stash house” operations, in which …

When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s opinion in McCoy v. Louisiana held that a defendant has a constitutional right to insist their attorney not concede guilt as to any element of an offense, even if doing so is the only reasonable trial strategy to give the defendant a chance at life imprisonment instead of the death penalty. Under McCoy’s holding, a defendant can insist on maintaining their innocence—even in the face of overwhelming evidence—and force their attorney to pursue a defense that will land them on death row. The Supreme Court’s holding makes clear that a strategic concession of guilt at trial—over …

Reversing The Evils Of Federal Mandatory Minimum Sentences: Is Clemency The Only Answer?, Melissa Johnson

Journal of Civil Rights and Economic Development

(Excerpt)

Thirty-five years ago, Alice Marie Johnson lived a full life. She was a wife, a mother of five children, and a manager at FedEx. Then divorce, the death of one of her children, and job loss shattered her world. Ms. Johnson was able to find employment as a factory worker, a role which paid only a fraction of her former salary and was insufficient to support her children. Desperate and burdened, she became a telephone mule for drug dealers. She was instructed to “pass phone messages [and] [w]hen people came to town . . . [to tell] them what …

Chronic Traumatic Encephalopathy: Mental Disease Or Defect That Can Trigger A Successful Criminal Defense, Thomas Mosczczynski

Journal of Civil Rights and Economic Development

(Excerpt)

When he was a child, he was called kind, gentle and even sweet. He started playing football at a young age that ripened into a successful high school career that lasted from 2004 to 2007. He was a dominant force on the gridiron under the Friday night lights as he played both offense and defense—rarely missing a play. College scouts took notice, and suddenly, the world was his oyster. A small-town kid from Bristol, Connecticut became the talk of college recruiters across the country. In 2007, a year after the death of his father, the quiet kid from Bristol …

Editor’S Foreword, Ava Agree

Hastings Journal of Crime and Punishment

No abstract provided.

Defunding Prosecutors And Reinvesting In Communities: The Case For Reducing The Power And Budgets Of Prosecutors To Help End Mass Incarceration, Udi Ofer

Hastings Journal of Crime and Punishment

No abstract provided.

Unnecessary Burdens To Post-Conviction Dna Testing: New Mexico's Post-Conviction Dna Relief Statute And Suggestions For Improvement, Samantha Catalano

Student Published Scholarship

Post-conviction DNA testing is often the last option a convicted person may have to establish that they are not guilty of a crime. New Mexico's post-conviction DNA statute requires convicted persons who seek DNA testing to claim innocence and establish that the identity of the perpetrator was an issue at trial. These requirements are currently included in many state post-conviction DNA statutes; however, some states have amended their statutes to remove these unnecessary requirements. Convicted persons who claimed self-defense, or another affirmative defense may be denied post-conviction DNA testing because of inability to claim "innocence" and because the identity of …

Examining Scott Peterson’S Appeals, Paige Bonavito

Selected Full-Text Master Theses Collection 2018-

This works discusses the Scott Peterson case, which took place from 2002-2004. Scott Peterson was convicted of murdering his wife Laci and unborn son Conner in 2004, and was given the death penalty. Peterson has filed automatic appeals and habeas corpus appeals since his trial, which have made their way through the California court system. Peterson’s death sentence was overturned by the California Supreme Court in 2020, and the California Supreme Court ordered the San Mateo trial court to look into overturning Peterson’s conviction. This work not only discusses the Peterson case at great length, it also serves to examine …

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility …

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

Biden's Prosecutors, Melanie D. Wilson

Scholarly Articles

In President Biden’s inauguration speech, he offered us hope, while acknowledging America’s challenging history. He also promised progress––real progress––on racial justice. “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer[,]” he said.

Meaningful progress toward racial equality begins with a fairer criminal justice system. We must take an anti-racist, anti-xenophobic, anti-homophobic, and anti-classist approach to prosecutions. In turn, that type of progress demands sound leadership at the Department of Justice (DOJ) and from the ninety-three United States attorneys whom the President appoints. The lead prosecutors …

Releasing Older Prisoners Convicted Of Violent Crimes: The Unger Story, Michael Millemann, Jennifer Elisa Chapman, Samuel P. Feder

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Getting To Know You: An Expanded Approach To Capital Jury Selection, Samuel P. Newton

Articles

The Colorado Method of capital jury selection is a widely embraced strategy defense attorneys use to select jurors during voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for death. The method could benefit from some expansion. Not all defense lawyers have access to Colorado-Method-based training. In innocence cases, defense lawyers should soften discussions of punishment prior to guilt since this tactic predisposes juries to vote for death. Nor do jurors' views or positions on the death penalty guarantee their eventual votes. While capital juries are already inclined to give death sentences …

Buried Alive: Gay V. Baldwin And Unconstitutional Solitary Confinement For Prisoners With Mental Illness, Hannah May

Loyola University Chicago Law Journal

Few inmates placed in solitary confinement escape the detrimental consequences of the punitive, oppressive conditions. Anthony Gay is no exception. As a teenager, Gay pled guilty to robbery for stealing a hat and a $1 bill and violated his probation by driving a vehicle without a license when he was twenty years old. Gay was supposed to be released in three and a half years with good behavior, but he suffers from borderline personality disorder. The symptoms of his mental illness, such as self-mutilation and throwing bodily fluids, manifested in prison. The manifestations of his mental illness landed him in …

Politics And The Institutional Integrity Of The Icc, In The Past, Present, And Future Of The International Criminal Court (Alexander Heinze & Viviane Dittrich Eds., 2021), Shannon Fyfe

Books and Chapters

The Rome Statute of the International Criminal Court (‘Rome Statute’ and ‘ICC‘) emerged following years of interest from various governments in establishing a permanent court to prosecute perpetrators of international crimes. The treaty that eventually established the ICC was the result of inter-governmental negotiations, which were ultimately successful in large part due to the ‘tribunal fatigue’ of governments concerned by “the financial and political costs of creating ad hoc United Nations (‘UN’) criminal tribunals for the atrocities that burdened so many regions of the world”. A permanent court would “provide greater efficiencies in addressing the investigation and prosecution of atrocity …

Invoking Criminal Equity's Roots, Cortney Lollar

Law Faculty Scholarly Articles

Equitable remedies have begun to play a critical role in addressing

some of the systemic issues in criminal cases. Invoked when other

solutions are inadequate to the fair and just resolution of the case,

equitable remedies, such as injunctions and specific performance,

operate as an unappreciated and underutilized safety valve that

protects against the procedural strictures and dehumanization that are

hallmarks of our criminal legal system. Less familiar equitable-like

legal remedies, such as writs of mandamus, writs of coram nobis, and

writs of audita querela, likewise serve to alleviate fundamental errors

in the criminal process. Several barriers contribute to the …

Beyond A Reasonable Doubt: Juries Don’T Get It, Hon. James A. Shapiro, Karl T. Muth

Loyola University Chicago Law Journal

Proof beyond a reasonable doubt has been de rigueur in criminal cases almost since the dawn of the republic. It is based on the premise that it is better to let several guilty people go free in order to save one innocent person from wrongful conviction. The jury in a criminal case is not merely an audience. It is the central mechanism without which the wheels of American criminal justice cannot turn-- and operates as the final safeguard against a grave error. However, while the Constitution describes the importance, composition, and role of the jury, it does not explicitly …

Ua12/8 Annual Campus Safety & Security Report, Wku Police

WKU Administration Documents

A statement of current campus policies regarding procedures for students and others to report criminal actions or other emergencies occurring on campus and policies concerning the institution's response to such reports.

Deprivation Of The Right To Counsel For Federal Pretrial Detainees During The 2019 Novel Coronavirus Pandemic, 54 Uic L. Rev. 659 (2021), Mary Vukovich

UIC Law Review

No abstract provided.

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Escaping Death: The Colorado Method Of Capital Jury Selection, 54 Uic J. Marshall L. Rev. 247 (2021), Sophie Honeyman

UIC Law Review

No abstract provided.