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Confrontation In The Age Of Plea Bargaining, William Ortman

Scholarly Works

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s witnesses. This Essay argues that the Supreme Court should align its Confrontation Clause jurisprudence with the reality of contemporary criminal justice. The Sixth Amendment grants a criminal defendant the right …

Acid Attacks In India: A Socio-Legal Report, Vidhik Kumar

Dignity: A Journal of Analysis of Exploitation and Violence

India has the highest number of acid attacks globally every year, and despite the actions taken by the Indian Government and the Supreme Court of India, the crime is on the rise. This increase can be attributed to the patriarchal ideology that is prevalent in India and to India’s inadequate legal system, which does not deliver efficient remedies to the victims. This article will discuss the prevalence of acid attacks in India, motives behind the attacks, consequences on victims, and shortcomings in measures adopted to prevent the crime and provide justice to victims.

Courts Beyond Judging, Michael C. Pollack

Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Abolish Municipal Courts: A Response To Professor Natapoff, Brendan Roediger

All Faculty Scholarship

If we are serious about disrupting the generational reproduction of the racial social order, we are going to have to learn to let go. Taking up the legacy of criminal municipal courts and racial control, this Response argues against the practice of prescribing from the traditional “medication list” of liberal reforms (substantive, procedural, and “democratizing”) without grappling with whether a system or apparatus is so inextricably bound up with the maintenance of race and class hierarchy that it should be demolished. I assert that we should always ask whether something is redeemable before we ask whether it is reformable. In …

The Practice And Pedagogy Of Carceral Abolition In A Criminal Defense Clinic, Nicole Smith Futrell

Faculty Scholarship

Current social and racial justice movements have helped to advance deeper interest in the long-standing work of carceral abolitionists. Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively perpetuate, the underlying problems that produce violence and harmful behavior in our communities. Abolition focuses on dismantling our current carceral systems and finding completely new, restorative, and collaborative ways of addressing harmful social behaviors. While abolitionist thought has long existed in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Populist Prosecutorial Nullification, Kerrel Murray

Faculty Scholarship

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of …

Incorporation By Any Other Name? Comparing Congress' Federalization Of Tribal Court Criminal Procedure With The Supreme Court's Regulation Of State Courts, Jordan Gross

Faculty Law Review Articles

This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government’s displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today. Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA’s criminal procedure provisions. In TLOA and VAWA 2013, Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the …

Talking Back In Court, M. Eve Hanan

Scholarly Works

No abstract provided.

Incarcerated Activism During Covid-19, M. Eve Hanan

Scholarly Works

Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in incarcerated activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practices, it reveals both …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

Scholarly Works

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …

Symposium: Expanding Compassion Beyond The Covid-19 Pandemic, Jenny Roberts

Scholarly Articles in Law Reviews & Journals

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be "greater than necessary" to achieve the ends of justice.

Surveillance And The Tyrant Test, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, …

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

Beyond "Children Are Different": The Revolution In Juvenile Intake And Sentencing, Joshua Gupta-Kagan

Faculty Scholarship

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can …

"Man Is Opposed To Fair Play": An Empirical Analysis Of How The Fifth Circuit Has Failed To Take Seriously Atkins V. Virginia, Michael L. Perlin, Talia Roitberg Harmon, Sarah Wetzel

Articles & Chapters

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could …

I Am Woman, Hear Me Roar: Denial Of Sexual Reassignment Surgery For Transgender Inmates And The Eighth Amendment’S Ban On Cruel And Unusual Punishment, Chiara Haueter

Touro Law Review

No abstract provided.

Law Enforcement Organization Relationships With Prosecutors, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s o􀁽ces must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible. This chapter explores such organizational interactions and their value.

Privacy Asymmetries: Access To Data In Criminal Defense Investigations, Rebecca Wexler

Faculty Scholarship

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement but not when requested by criminal defense counsel. In the U.S. adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, statutes that selectively suppress defense investigations selectively suppress evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and …

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia Gonzalez

Articles

No abstract provided.

A Taxonomy Of Police Technology’S Racial Inequity Problems, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Over the past several years, increased awareness of racial inequity in policing, combined with increased scrutiny of police technologies, have sparked concerns that new technologies may aggravate inequity in policing. To help address these concerns, some advocates and scholars have proposed requiring police agencies to seek and obtain legislative approval before adopting a new technology, or requiring the completion of “algorithmic impact assessments” to evaluate new tools.

In order for policymakers, police agencies, or scholars to evaluate whether and how particular technologies may aggravate existing inequities, however, the problem must be more clearly defined. Some scholars have explored inequity in …

Entitlement To Punishment, Kyron J. Huigens

Articles

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …

Prosecutors And Mass Incarceration, Shima Baradaran Baughman, Megan Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Police Prosecutions And Punitive Instincts, Kate Levine

Articles

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal …

Racial Bias Still Exists In Criminal Justice System? A Review Of Recent Empirical Research, Yu Du

Touro Law Review

The debate on whether racial bias is still embedded in the criminal justice (CJ) system today has reached its plateau. One recent article in the Washington Post has claimed an overwhelming evidence of racial bias in the CJ system. Whereas some scholars argue that racial disparity is an epitome of real crime rates, others indicate that implicit and/or explicit racial bias against Blacks held by law enforcement agents persists in the system. This review considers both supporting arguments and relevant counterarguments. After evaluating empirical and rigorous research during the past five years, the review maintains that racial bias still exists …

Memory, Moral Reasoning, And Madison V. Alabama, Elias Feldman

Touro Law Review

No abstract provided.

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings …

A Quiet War: The Judiciary's Steady And Unspoken Effort To Limit Felony-Murder, Maggie Davis

Arkansas Law Review

On a Wednesday afternoon a sixteen-year-old boy is hanging out after school with four of his friends. He is your average sixteen-year-old; he has a girlfriend who works at Wendy’s, and his current worry is about passing his driving test. He smokes some weed from time to time with his friends, but he has a clean criminal record. After complaining about being broke and deciding they have nothing better to do, the five friends elect to break into a seemingly vacant home in order to steal some items for resale. He is already thinking about what he will buy with …