Digital Commons Network^™

Investigative Delegations: Predictable Predicaments, Nancy Amoury Combs

Faculty Publications

No abstract provided.

A Rational Approach To Sentencing Offenders For Animal Cruelty: A Normative And Scientific Analysis Underpinning Proportionate Penalties For Animal Cruelty Offenders, Mirko Bagaric, Jane Kotzmann, Gabrielle Wolf

South Carolina Law Review

No abstract provided.

Arrests As Guilt, Anna Roberts

Faculty Scholarship

No abstract provided.

Lead Us Not Into Temptation: A Response To Barbara Fedders's Opioid Policing, Anna Roberts

Faculty Scholarship

No abstract provided.

Algorithms & Instruments: The Effective Elimination Of New Jersey’S Cash Bail System And Its Replacement, David Reimel Iii

Penn State Law Review (2003 - Present)

Until 2017, every state conditioned pretrial release on cash bail. Judges across the United States predicted the risk individuals posed of failing to appear and the danger to the community. As a result, indigent individuals waited in jails merely because they could not afford their bail. In 2017, New Jersey spearheaded the movement to change how the bail system operates by passing the Criminal Justice Reform Act (“CJRA”), which created an objective decision-making tool called the Public Safety Assessment.

Today, New Jersey judges are no longer required to speculate about the future decisions of individual defendants. Instead, the Public Safety …

A Blind Spot In Miranda Rights: Juveniles' Lack Of Understanding Regarding Miranda Language, Wadad Barakat

St. Thomas Law Review

This Comment addresses the negative implications of juveniles who waive their Miranda rights due to lack of knowledge, fear, and lack of cognitive capabilities." First, this Comment will provide insight regarding the Fifth Amendment, the history of Miranda, and key cases that lead to the reform of Miranda. Second, this Comment will discuss juveniles' perspective of the Miranda language along with the police's perspective. In particular, it will emphasize the complexity of the language as it stands today and how juveniles' cognitive abilities are insufficiently developed to understand it. Lastly, this Comment will propose guidelines to prevent minors from giving …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror …

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

SMU Law Review

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by parole- boards as executive …

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

Sharkfests And Databases: Crowdsourcing Plea Bargains, Kay L. Levine, Ronald F. Wright, Nancy J. King, Marc L. Miller

Faculty Articles

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position …

The Confrontation Right, Richard D. Friedman

Book Chapters

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …

Reviving Criminal Equity, Cortney Lollar

Law Faculty Scholarly Articles

Recent scholarship has begun to take note of a resurgence of equity in civil cases. Due to a long-accepted premise that equity does not apply in criminal cases, no one has examined whether this quiet revival is occurring in criminal jurisprudence as well. After undertaking such an investigation, this Article uncovers the remarkable discovery that equitable remedies, including injunctions and specific performance, are experiencing a resurgence in both federal and state criminal jurisprudence. Courts have granted equitable relief in a range of scenarios, providing reprieve from unconstitutional bail and probation practices and allowing for an appropriate remedy to ineffective assistance …

Coerced Fate: How Negotiation Models Lead To False Confessions, Kiera Janzen

Journal of Criminal Law and Criminology

Police interrogators across the United States employ tactics that can lead to coerced, often false, confessions. While police departments have shifted away from physically coercive methods of interrogation, psychologically coercive practices that utilize deceit have taken their place. The reliability of confession evidence becomes a significant concern when interrogators elicit confessions using these techniques. Further demonstrating the need for change in this realm, false confessions and wrongful convictions place a financial burden on cities and taxpayers, who foot the bill for settlements and damages resulting from these cases. The current legal framework in the U.S. permits—by failing to explicitly prohibit—these …

A Guiding Hand Or A Slap On The Wrist: Can Drug Courts Be The Solution To Maternal Opioid Use?, Cara O'Connor

Journal of Criminal Law and Criminology

As the opioid epidemic has expanded its reach, the number of pregnant women addicted to opioids has increased exponentially in recent years. The increase in the number of opioid-addicted pregnant women has resulted in a drastic expansion in the number of newborns who experience Neonatal Abstinence Syndrome (NAS). Newborns affected with NAS experience painful withdrawal and cost more to care for due to their increased health needs. In an effort to address the growing number of pregnant women using opioids and babies born with NAS, some states have turned to the criminal justice system. Three states–Tennessee, South Carolina, and Alabama–have …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen Henderson

Journal of Criminal Law and Criminology

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves.

In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Journal of Criminal Law and Criminology

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, …

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

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 …

Note: Decarceration In A Mass Incarceration State: The Road To Prison Abolition, Robert H. Ambrose

Mitchell Hamline Law Review

No abstract provided.

Stop In The Name Of Love: Putting An End To The Felony Prosecution Of Adolescent Sexting, Angela Bailey, Laura Heinrich

Mitchell Hamline Law Review

No abstract provided.

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Comparisons Of The Soul: A Foucauldian Analysis Of Reasonable Doubt, Jeri Mallory

Scripps Senior Theses

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

All Faculty Scholarship

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

The Best We Can Be: How Toxic Masculinity Creates A Second Inescapable Situation For Inmates, Mariah Woodson

Public Interest Law Reporter

Toxic masculinity is a concept that has been in modern society for some time now. However, the recent release of the controversial Gillette razor commercial has sparked an uptick in discussions, from those who lauded the company for addressing the negative traits often associated with traditional masculinity to those who felt as though the company was unfairly targeting masculinity altogether. Regardless of where one falls on the debate, there is no denying the need for conversation. One point of discussion is what areas of our society embody these traits the most? An area that may be less intuitive are prisons …

The School To Prison Pipeline: Widespread Disparities In School Discipline Based On Race, Tara Carone

Public Interest Law Reporter

No abstract provided.

Students For Fair Admissions V. Harvard: Admissions Administrators Threaten The Future Of Affirmative Action In The United States, Seth Johnson

Public Interest Law Reporter

No abstract provided.