Digital Commons Network^™

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

Race And The Federal Criminal Justice System: A Look At The Issue Of Selective Prosecution, Drew S. Days Iii

Maine Law Review

The Fourth Annual Frank M. Coffin Lecture on Law and Public Service was held on September 13, 1995. Following Dean Donald Zillman's opening remarks, The Honorable Drew S. Days III, Solicitor General of the United States, presented “Race and the Federal Criminal Justice System: A Look at the Issue of Selective Prosecution.” The Board and Staff of Volume 48 are honored to publish his remarks in their entirety.

Privileging Public Defense Research, Janet Moore, Ellen Yaroshefsky, Andrew L. Davies

Faculty Articles and Other Publications

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect …

Police Lineups And Eyewitness Identification, Alessandra Ricigliano

Honors Senior Capstone Projects

Improper police lineups often lead to the misidentification of a suspect in particular cases. These mistakes could potentially have detrimental effects on someone’s freedom because eyewitness identifications hold so much weight in court proceedings. If a witness or victim is certain they can identify the suspect, jurors are likely to believe them whether the witness is right or wrong. Eyewitness misidentification is one of the leading causes of wrongful convictions (The Innocence Project, 2017). The current research employs qualitative in depth interviews with police officers from local and state departments. The interviews asked about police procedures for conducting simultaneous and …

Drunk Driving, Blood, And Breath: The Impact Of Birchfield V. North Dakota, Simon Bord

Cornell Journal of Law and Public Policy

Birchfield v. North Dakota is a landmark decision that will influence criminal procedure jurisprudence for years to come. Birchfield drew a distinction between the level of intrusiveness inherent in a breath test versus a blood test, upholding warrantless searches incident to a DUI arrest involving the former, but not the latter. In addition, the Court ruled that criminal penalties for refusing to consent to a blood draw were unconstitutional, but such penalties were an acceptable punishment for motorists who refused to undergo a breath test. Because Birchfield failed to establish a clear rule regarding the permissible scope of implied consent …

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Faculty Publications

No abstract provided.

The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider

Indiana Law Journal

Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism,1 yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with criminal records …

Criminology (Gsu, Clayton), Scott Jacques, Andrea Allen

Criminal Justice and Law Grants Collections

This Grants Collection for Criminology was created under a Round Nine ALG Textbook Transformation Grant.

Affordable Learning Georgia Grants Collections are intended to provide faculty with the frameworks to quickly implement or revise the same materials as a Textbook Transformation Grants team, along with the aims and lessons learned from project teams during the implementation process.

Documents are in .pdf format, with a separate .docx (Word) version available for download. Each collection contains the following materials:

• Linked Syllabus
• Initial Proposal
• Final Report

Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English

Indiana Law Journal

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the solution …

The State Of American Juvenile Justice, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will summarize the major twenty-first century state legislative and case law developments. It will also briefly note the expansion of state and local initiatives limiting the prosecution of youthful offenders, such as diversion and restorative justice programs.

The state of American juvenile justice has improved significantly in the past several years. However, the reforms are best viewed as a work in progress. Much has been accomplished, but much remains to be accomplished. Crucially, after a generation of “tough on kids” measures, we are on the road toward a true “justice” system for children.

Thank You All The Same, But I’D Rather Not Be Seized Today: The Constitutionality Of Ruse Checkpoints Under The Fourth Amendment, Nadia B. Soree

Buffalo Law Review

No abstract provided.

Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, Jj Prescott

Law & Economics Working Papers

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil …

Techno-Policing, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Smoke But No Fire: When Innocent People Are Wrongly Convicted Of Crimes That Never Happened, Jessica S. Henry

Department of Justice Studies Faculty Scholarship and Creative Works

Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful …

Why De Minimis Should Not Be A Defence, Stephen Coughlan

Articles, Book Chapters, & Popular Press

De minimis non curat lex—the idea that the law does not concern itself with trifles—is originally a private law maxim whose applicability in criminal law is uncertain. The author argues that de minimis should not exist as a criminal defence. This article distinguishes the use of de minimis as an (accepted) interpretative principle in criminal law from its application as a defence. In doing so, the author critiques the potential rationales for de minimis offered by Arbour J in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Instead, the author draws a parallel between de minimis …

Admissibility Of First Time In-Court Eyewitness Identifications: An Argument For Additional Due Process Protections In New York, Dakota Kann

Cardozo Law Review

No abstract provided.

Dassey V. Dittmann: Brief Amicus Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel R. Gross, Yale Kamisar

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality-of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of this …

Dassey V. Dittmann: Brief Amici Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel Gross, Yale Kamisar, Eve Brensike Primus

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality- of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of …

The Right To Counsel But Not The Presence Of Counsel: A Survey Of State Criminal Procedures For Pre-Trial Release, John P. Gross

Florida Law Review

There is a widely-held belief that the state provides counsel to indigent criminal defendants at their initial appearance in state court. However, the majority of states do not provide counsel to indigent defendants at their initial appearance when a judicial officer determines conditions of pretrial release. State criminal procedure codes fail to provide the same procedural protections that defendants have in federal court. Indeed, states systems are characterized by predictive determinations regarding guilt, an overemphasis on the potential dangerousness of defendants, a lack of adequate pretrial services, and continued reliance on financial securities.

The U.S. Supreme Court has done little …

Cuyahoga County Bail Task Force: Report And Recommendations, Jonathan Witmer-Rich, Jay Milano, Carmen Naso, Mary Jane Trapp

Law Faculty Reports and Comments

Introduction:

All Cuyahoga County courts should transition from a bail system based on bond schedules, which vary widely from one court to the next, to a centralized, consistent, and comprehensive system of pretrial services initiated immediately after arrest. For most minor offenses, the presumption should be release on personal recognizance. Money bail should not be used to simply detain defendants. Rather than relying on bond schedules, courts should assess each defendant’s risk of non-appearance and danger to the community using a uniform risk assessment tool. If money bail is considered, courts should evaluate each defendant’s risk of non-appearance and ability …

Legitimacy, Authority, And The Right To Affordable Bail, Colin Starger, Michael Bullock

William & Mary Bill of Rights Journal

Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable …

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

Commerce Clause Challenges Spawned By United States V. Lopez Are Doing Violence To The Violence Against Women Act (Vawa): A Survey Of Cases And The Ongoing Debate Over How The Vawa Will Fare In The Wake Of Lopez, Lisanne Newell Leasure

Maine Law Review

On September 14, 1994, in response to and in recognition of the epidemic of violence against women in the United States, Congress enacted the Violence Against Women Act (VAWA). The VAWA is a comprehensive statute designed to provide women greater protection from and recourse against violence and to impose accountability on abusers and those who commit crimes of violence based on gender animus. The VAWA, which contains seven parts, creates new federal crimes, strengthens penalties for existing federal sex crimes, and provides $1.6 billion over six years for education, research, treatment of domestic and sex crime victims, and the improvement …

Using Daubert To Evaluate Evidence-Based Sentencing, Charlotte Hopkinson

Cornell Law Review

Despite its purported positive impact on the criminal justice system, evidence-based sentencing risks fooling judges and juries and further contributing to the overrepresentation of men of color and poor people in prisons. The problems with the creation of these models, namely a lack of replication, potentially unconstitutional use of certain factors, high false positive rates, and issues with G2i abstraction, should all create serious concerns for actors in and around the criminal justice system.

Incentivized Informants, Brady, Ruiz, And Wrongful Imprisonment: Requiring Pre-Plea Disclosure Of Material Exculpatory Evidence, Markus Surratt

Washington Law Review

An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do? Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not …

What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides …

Criminal Procedure And The Good Citizen, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Jeremias V. State, 134 Nev. Adv. Op. 8 (Mar. 01, 2018), Maliq Kendricks

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that a judgment of conviction, pursuant to a jury verdict, of one count each of conspiracy to commit robbery and burglary while in possession of a deadly weapon and two counts each of robbery with the use of a deadly weapon and murder with the use of a deadly weapon, commands a death sentence.

Racial Justice And Federal Habeas Corpus As Postconviction Relief From State Convictions, Leroy Pernell

Mercer Law Review

It is the purpose of this Article not to simply document the influence of race on our criminal system and its role in the current racial crisis of overrepresentation of minorities in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity--federal habeas corpus as a postconviction remedy. By looking first at the racial context of several "landmark" criminal justice reform decisions, this Article considers how race serves as the root of the procedural due process reform that began in earnest during the Warren Court. This Article then notes …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …