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Topoics In Criminology And Criminal Justice Ccj 200, Karen Morse

Library Impact Statements

No abstract provided.

Honoring Innocent Until Proven Guilty: Switching The Default Rule From Pretrial Detention To Pretrial Release In Texas's Bail System, Stephen Rispoli

Texas A&M Law Review

Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future …

Burning A Hole In The Pocket Of Justice: Prop. 66'S Underfunded Attempt To Fix California's Death Penalty, Flavia Costea

Loyola of Los Angeles Law Review

California has struggled with the administrative and financial burdens of a flawed death penalty system for decades. In an effort to save the death penalty, the voters of California enacted Proposition 66, which promised to deliver a quicker and more cost-effective system. This Article focuses on the provision of Prop. 66 that expands the number of lawyers who can act as defense lawyers for inmates on death row. While this provision superficially seems to solve the shortage of defense attorneys willing to take on death penalty cases, without significant funding, the shortage of resources and pressure to speed up executions …

The Place Of The People In Criminal Procedure, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

The New Amy, Vicky, And Andy Act: A Positive Step Towards Full Restitution For Child Pornography Victims, Paul Cassell, James R. Marsh

Utah Law Faculty Scholarship

In this article, we review some of the valuable steps forward found in the AVAA, as well as the work that remains to be done. But in closing, it may be useful to remember that the legal issues swirling around restitution decisions have real world consequences, both for the defendants who must pay the restitution awards and the victims who need and deserve compensation. As between these two groups, however, the equities tip decisively in favor of victims. To be sure, large restitution awards have financial consequences for criminal defendants. But the stark fact remains that criminals have a choice …

Brace For Impact: The Effects Of Victim Impact Evidence And Judicial Instructions On Juror Memory Distortion And Sentencing Decisions In Capital Trials, Auset E. Alexander

Student Theses

The utilization of visual evidence in the courtroom has increased exponentially in an effort to portray additional information that cannot otherwise be established via forensic evidence and expert testimony. According to Rule 403 of the Federal Rules of Evidence (1984), visual evidence may be permitted in court if the prejudicial value does not significantly outweigh the probative value. The admissibility of visual evidence however, becomes controversial when combined with victim impact statements (VIS) during the penalty phase of capital trials.

Previous research has indicated that jurors are often unable to perceive emotional testimony and subsequently make objective sentencing decisions that …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Reviving Escobedo, Janet Moore

Faculty Articles and Other Publications

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation for …

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology …

From Timbuktu To The Hague And Beyond: The War Crime Of Intentionally Attacking Cultural Property, Mark A. Drumbl

Scholarly Articles

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature. What might the work product of the ICC in the Al Mahdi proceedings -- and international criminal law more generally -- add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that …

Will The Supreme Court Rein In “Excessive Fines” And Forfeitures? Don’T Rely On Timbs V. Indiana, Nora V. Demleitner

Scholarly Articles

The U.S. Supreme Court’s decision in Timbs v. Indiana buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines and forfeitures. One commentator deemed it “a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.” That may have been an overstatement. The Court seems disinclined to fill the term proportionality with robust meaning or wrestle with Eighth Amendment challenges to fines and fees. Those steps would be required for the Excessive Fines Clause to function as an effective backstop against …

Saving Justice: Why Sentencing Errors Fall Within The Savings Clause, 28 U.S.C. § 2255(E), Brandon Hasbrouck

Scholarly Articles

Notwithstanding the extent to which scholars, lawyers, and community organizers are broadening their contestations of the criminal justice system, they have paid insufficient attention to federal sentencing regimes. Part of the reason for this is that sentencing is a “back-end” criminal justice problem and much of our nation’s focus on criminal justice issues privileges “front-end” problems like policing. Another explanation might be that the rules governing sentencing are complex and cannot be easily rearticulated in the form of political soundbites. Yet sentencing regimes are a criminal justice domain in which inequalities abound—and in ways that raise profound questions about fairness, …

#Metoo, Meet Inclusivity: Criminal Procedure In Sexual Assault Cases Should Include People With Intellectual Disabilities, Mercy Adoga

Fordham Undergraduate Law Review

This Note explores the legal history of criminal law involving sexual assault cases of persons with intellectual disabilities from 1989 to the present day. The nuances of this legal history will be analyzed through the lens of State v. Scherzer, otherwise known as the Glen Ridge case of 1989. This Note will analyze the effect the Glen Ridge case had on later cases, and how the criminal justice system continues to treat intellectually disabled survivors of sexual assault. Statistics show that people who have intellectual disabilities are more likely to be sexually assaulted, and that the conviction rate for these …

Second-Best Criminal Case, William Ortman

Law Faculty Research Publications

No abstract provided.

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Faculty Publications

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Felon Disenfranchisement, Nora V. Demleitner

Scholarly Articles

In its broadest forms, felon disenfranchisement excludes even individuals who have long been rehabilitated. Yet they are still treated only as partial citizens. Automatic, long-term restrictions on the franchise are unnecessarily exclusionary. More importantly, they hinder reentry and rehabilitation. Citizens returning from imprisonment, who can vote, have lower rates of recidivism than those who are barred from voting. Re-enfranchisement signals a return to citizenship. It advances and confirms a returning citizen’s full participatory rights. Ultimately, that means we recognize these individuals as having lived up to the expectation of rehabilitation rather than leaving them feeling defeated.

Cash Rules Everything Around The Money Bail System: The Effect Of Cash-Only Bail On Indigent Defendants In America's Money Bail System, Nicholas P. Johnson

Buffalo Public Interest Law Journal

No abstract provided.

Racial Bias In Post-Arrest And Pretrial Decision Making: The Problem And A Solution, Joseph J. Avery, Joel Cooper

Cornell Journal of Law and Public Policy

There is significant racial disparity in U.S. incarceration rates, with African Americans vastly overrepresented. Given that almost all criminal cases resolve through plea bargaining, a process that takes place between the poles of arrest and trial, if progress concerning racial disparity in incarceration rates is to be made, greater understanding of the post-arrest and pretrial (PAPT) period is necessary. What do we know about racial bias in PAPT decision making, and what can the psychology of prejudice teach us about it?

In this Article, we map the factors that are liable to lead individuals to disparate treatment decisions, and we …

Attorney-Client Communication In Public Defense: A Qualitative Examination, Janet Moore, Vicki L. Plano Clark, Lori A. Foote, Jacinda K. Dariotis

Faculty Articles and Other Publications

This article presents a qualitative research approach to exploring attorney-client communication in an urban public defense system. The study drew upon procedural justice theory [PJT], which emphasizes relationships between satisfaction with system procedures and compliance with system demands. Interpretive analysis of interview data from 22 public defense clients revealed four major themes. PJT accounted well for three themes of communication time, type, and content, highlighting relationships between prompt, iterative, complete communication and client satisfaction. The fourth theme involved clients exercising agency, often due to dissatisfaction with attorney communication. This theme was better accommodated by legal consciousness theory, which emphasizes that …

Nolo Contendere Convictions: The Effect Of No Confession In Future Criminal Proceedings, Ramy Simpson

Criminal Law Practitioner

No abstract provided.

A Review Of The Wrongful Convictions Reader: A Comprehensive Resource For Students, Faculty, And Practitioners, Stephanie Roberts Hartung

Cardozo Law Review de•novo

Professor Stephanie Roberts Hartung reviews The Wrongful Convictions Reader, a 2019 book by Russell D. Covey and Valena E. Beety.

Effective Assistance Of Counsel? An Empirical Study Of Defense Attorneys’ Decision-Making In False-Confession Cases, Sara C. Appleby, Hadley R. Mccartin

Cardozo Law Review de•novo

Although there is considerable literature on the causes of false confessions and the effects confession evidence has on juror decision-making, little research has examined attorneys’ decision-making in disputed confession cases. As the intervening step between when the confession is elicited and the case is resolved, it is crucial that research examine effects of confession evidence on this population. The current studies investigate defense attorneys’ knowledge and perception of key interrogation and confession issues as well as their decision-making in a disputed confession case. Overall, results show that defense attorneys are knowledgeable about key interrogation and confession issues and are aware …

The (Im)Partial Jury: A Trial Consultant’S Role In The Venire Process, Stephanie M. Coughlan

Brooklyn Law Review

Over the last four decades, trial consultants have become integral members of the venire process. Before the trial consulting field emerged, attorney-conducted voir dire focused too heavily on an attorney’s gut instincts and subconscious biases. This note highlights two concerns arising from attorney-conducted voir dire. First, in Batson v. Kentucky and its progeny, the Supreme Court addressed the unconstitutionality of a system that permits attorneys to strike jurors based on unfounded prejudices. Although Batson and its progeny prohibit lawyers from exercising discriminatory challenges against prospective jurors, this practice can easily go undetected. Second, as illustrated in Peña-Rodriguez v. Colorado, the …

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 …

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 …

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

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 …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Promoting Equality Through Empirical Desert, Ilya Rudyak

Texas A&M Law Review

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Publications

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors' decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that …