Digital Commons Network^™

Transforming Crime Victims’ Rights: From Myth To Reality, Robyn Holder, Tyrone Kirchenghast, Paul Cassell

Utah Law Faculty Scholarship

Rights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person. In this Guest Editors Introduction to the Special Issue, Making Rights Real, we suggest that victims’ rights are in transition. Rights may be set out in legal instrument but, we argue, it is through the practices of people in their myriad settings that are part of that shift to realising rights in action. We describe ways in which we see victims’ rights being realised in different parts of the …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

False Confession In Wrongful Convictions And The Effect Of Recording Custodial Interrogations Through Exoneration, Nana F. Owusu

West Chester University Doctoral Projects

To reduce false confessions and guilty pleas, twenty-seven states have passed a law to have all custodial interrogations electronically recorded. According to the Innocence Project briefing book (2017) on the electronic recording of interrogations, electronic recording is audio and audiovisual (Innocent Project, 2017). This study explores the factors that lead to false confessions and guilty pleas in wrongful convictions. The literature explains how deprivation, coercion, violence, and evidence fabrication can lead to false confessions and guilty pleas. Using the comparative/experimental research approach to study two groups (27 states with recording laws and 27 states (including territories) with no recording laws), …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Pandemic, Protest, And Agency: Jury Service And Equal Protection In A Future Defined By Covid-19, Patrick C. Brayer

Faculty Works

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals …

Miranda Is Dead. Long Live Miranda, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

Behind Bartkus: A Flamboyant Lawyer, A Vindictive Judge, And The Untold Story Of Double Jeopardy’S Dual Sovereignty, Stephen E. Henderson, Dean Strang

Faculty Articles

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or …

The Court Is In Recession: On The Implications Of The Covid-19 Pandemic For Indigent Defense Spending, Andrew L. B. Davies, Victoria M. Smiegocki, Hannah E. Hall

Other Publications

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007–2009. Redistributive policies—those which use taxpayer funds to support individuals who themselves pay little or no tax—are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. …

Who Wants To Be A Prosecutor? And Why Care? Law Students’ Career Aspirations And Reform Prosecutors’ Goals, Shih-Chun Steven Chien, Stephen Daniels

Law Faculty Articles and Essays

Often called “progressive” or “reform” prosecutors, a number of reform-minded prosecutors have been elected recently across the United States—promising a distinctive vision of criminal justice and signaling that their role will be more attuned to issues of race and equity than “law and order.” Furthering this vision requires dramatic changes to the working cultures—the norms, practices, and even personnel—of their offices. Diversity plays a major role.

One central challenge is identifying, attracting, and hiring newly-minted lawyers who can, over time, be socialized into and sustain a changing organizational culture. This article empirically examines that challenge, which involves two sides of …

Restitution For Child Pornography: Reframing A System For Victims Harmed By Too Many, Mackenzie Durkin

Loyola University Chicago Law Journal

Courts have commented that victims of child pornography suffer harm that is like “a thousand cuts.” This characterization is fitting because once images of a victim’s childhood sexual abuse are on the internet, the images are there forever. As a result, these victims are constantly revictimized by the knowledge that their images are being trafficked and consumed across the world.

This Comment analyzes the current framework for compensating victims through criminal restitution. Victims of all federal crimes, including child pornography offenses, are entitled to restitution for the full amount of their losses. However, this standard became complicated with child pornography …

An Empirical Assessment Of Homicide And Suicide Outcomes With Red Flag Laws, Rachel Delafave

Loyola University Chicago Law Journal

This Article empirically illustrates that red flag laws—laws which permit removal of firearms from a person who presents a risk to themselves or others—contribute to a statistically significant decrease in suicide rates, but do not influence homicide rates. I exploit state-level variation across time in the existence of red flag laws between 1990 and 2018 and find that the existence of a risk-based law reduces firearm-related suicides by 6.4% and overall suicides by 3.7%, with no substitution to non-firearm suicides. Red flag laws are not associated with a statistically significant change in homicides rates. Policymakers should consider red flag laws …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Criminal Procedure: Confessions, Searches, And Seizures, Honorable Barbara Parker Hervey, Carson Guy, Alexander R. Comsudi

SMU Annual Texas Survey

This article is a survey of the relevant developments in criminal procedure law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Revocation And Retribution, Jacob Schuman

Faculty Scholarship

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Monitoring The Misdemeanor Bail Reform Consent Decree In Harris County, Texas, Brandon L. Garrett, Sandra Guerra Thompson

Faculty Scholarship

No abstract provided.

Distinguishing Plea Discounts And Trial Penalties, Ben Grunwald

Faculty Scholarship

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and …

A Hallmark Of Injustice: Illinois Sentencing Regulations Fail Defendants And The Judicial System, 53 Uic J. Marshall L. Rev. 1009 (2021), Allison Trendle

UIC Law Review

No abstract provided.

Neither “Post-War” Nor Post-Pregnancy Paranoia: How America’S War On Drugs Continues To Perpetuate Disparate Incarceration Outcomes For Pregnant, Substance-Involved Offenders, Becca S. Zimmerman

Pitzer Senior Theses

This thesis investigates the unique interactions between pregnancy, substance involvement, and race as they relate to the War on Drugs and the hyper-incarceration of women. Using ordinary least square regression analyses and data from the Bureau of Justice Statistics’ 2016 Survey of Prison Inmates, I examine if (and how) pregnancy status, drug use, race, and their interactions influence two length of incarceration outcomes: sentence length and amount of time spent in jail between arrest and imprisonment. The results collectively indicate that pregnancy decreases length of incarceration outcomes for those offenders who are not substance-involved but not evenhandedly -- benefitting white …

Forensic Evidence In Arizona: Reforms For Victims And Defendants, Valena Beety

Articles by Maurer Faculty

Arizona is nationally recognized as a leader in forensic science. Our state court judges serve on the Legal Resource Committee for the National Institute of Science and Technology (NIST) and provide guidance to NIST’s Organization of Scientific Area Committees for Forensic Science. Our Phoenix lab analysts and lab directors have national reputations. And Arizona State University’s Sandra Day O’Connor College of Law has been home to many leading academics in the field of forensics and the law, among them Michael Saks, David Kaye, and Jay Koehler. We have a robust forensic science community in Arizona and in Phoenix in particular. …

Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill

Faculty Publications & Other Works

No abstract provided.

Women's Votes, Women's Voices, And The Limits Of Criminal Justice Reform, 1911-1950, Carolyn B. Ramsey

University of Colorado Law Review

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience-through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Blind Justice: Virginia’S Jury Sentencing Scheme And Impermissible Burdens On A Defendant’S Right To A Jury Trial, Mitchell E. Mccloy

Washington and Lee Law Review

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because …

Standing Between The Past And The Future, How Defense Attorneys Use Stigma Management Techniques In Presenting Their Closing Arguments In Capital Sentencing Procedures: A Content Analysis, Abdulrahmane Abdul-Aziz

All Graduate Theses, Dissertations, and Other Capstone Projects

In the penalty-phase of a capital case, defense attorneys face a difficult task in managing the identity of their now convicted client. They must present a coherent narrative that combats the prosecution’s case and engenders leniency from the jury. The closing argument given by the defense attorney(s) provides a unique opportunity to analyze and understand the general use of stigma management techniques and their applicability to capital cases. Using content analysis, 18 Transcripts from Texas capital cases from 2005 to 2015 were analyzed against the relevant techniques of neutralization (Sykes & Matza, 1957): appeal to a higher loyalty, appeal to …

Full Faith & Credit For Victims Of Human Trafficking, Joseph Woltmann

University of San Francisco Law Review

No abstract provided.

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …