Digital Commons Network^™

The Fear Factor: Exploring The Impact Of The Vulnerability To Deportation On Immigrants' Lives, Shirley P. Leyro

Dissertations, Theses, and Capstone Projects

This qualitative study explores the impact that the fear of deportation has on the lives of noncitizen immigrants. More broadly, it explores the role that immigration enforcement, specifically deportation, plays in disrupting the process of integration, and the possible implications of this interruption for immigrants and their communities. The study aims to answer: (1) how vulnerability to deportation specifically impacts an immigrant’s life, and (2) how the vulnerability to deportation, and the fear associated with it, impacts an immigrant’s degree of integration. Data were gathered through a combination of six open-ended focus group interviews of 10 persons each, and 33 …

Ideology, Race, And The Death Penalty: "Lies, Damn Lies, And Statistics" In Advocacy Research, Anthony Walsh, Virginia Hatch

Journal of Ideology

We use the literature on race in death penalty to illustrate the hold that ideology has on researchers and journalists alike when a social issue is charged with emotional content. We note particularly how statistical evidence become misinterpreted in ways that support a particular ideology, either because of innumeracy or because—subconsciously or otherwise—one’s ideology precludes a critical analysis. We note that because white defendants are now proportionately more likely to receive the death penalty and to be executed than black defendants that the argument has shifted from a defendant-based to a victim-based one. We examine studies based on identical data …

Commodifying Policing: A Recipe For Community-Police Tensions, Nora V. Demleitner

Scholarly Articles

This Article, in Part II, begins with a description of how municipalities, at least since the recession of 2008, have fallen short of fully funding their departments. Part III focuses on four distinct outside funding components and their impact on policing. The first subsection discusses asset forfeitures, under both state and federal law. Subsection two highlights revenue derived from citations, often in the form of traffic tickets. A discussion of fees that are being added to fines, often to fund courts, probation agencies, and police departments, follows. The increasing amounts and types of fees imposed have substantially increased the burden …

The President's Role In Advancing Criminal Justice Reform, Barack Obama

United States Department of Justice: Publications

Criminal justice is a complex system, administered at all levels of government and shaped by a range of actors. Thanks to the dedicated efforts of so many in my Administration, the bipartisan push for reform from federal, state, and local officials, and the work of so many committed citizens outside government, America has made important strides. We have reduced overlong sentences for offenders and removed barriers for those with criminal records. We have made progress in helping people, especially young people, avoid getting entangled in the justice system in the first place. This Commentary talks about those achievements — and …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last decade, a new push for criminal justice reform has taken hold. While the moral and fiscal costs have been exorbitant over the last forty years, failing state budgets and bipartisan recognition of the “broken” system have finally caused legislatures, politicians, and advocates to reassess the costs and benefits of the criminal justice system. Breaking the “tough on crime/soft on crime” binary, the “smart on crime” motto has become a helpful tool in reform efforts aimed at reducing the number of individuals incarcerated and ensuring its fairness, regardless of race and socioeconomic status. Little attention, however, has been …

On Competence: (Re)Considering Appropriate Legal Standards For Examining Sixth Amendment Claims Related To Criminal Defendants’ Mental Illness And Disability, Sarah Gerwig-Moore

Articles

This Article addresses the questions of attorney error and client competency and examines the following issues: the origin and development of the legal tests for intellectual competency to stand trial or enter a plea and the tests for evaluating Sixth Amendment effective assistance of counsel claims; the range of state and federal approaches to circumstances when those two situations converge; and whether and how our legal tests should be shaped to best assess attorney error when the client likely has an intellectual disability or incompetence. When consideration of a defendant's mental illness or mental disability forms the basis of a …

Relational Criminal Liability, Steven R. Morrison

Florida State University Law Review

“Relational criminal liability,” or one person’s criminal liability for the actions of another by way of a group of which both individuals are a part, generates a fundamental tension between collectivist and individualist approaches to liability. The collectivist approach, which reifies the group qua group, enables individuals to be liable for the acts of the group and the group to be liable for the acts of individuals. The individualist approach treats ind-viduals qua individuals, holding them liable only for their own conduct.

This tension sounds both in moral philosophy and legal theory. As to philosophy, Michael Bratman, Margaret Gilbert, and …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Can We Protect The Innocent Without Freeing The Guilty? Thoughts On Innocence Reforms That Avoid Harmful Tradeoffs, Paul Cassell

Utah Law Faculty Scholarship

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.

With this caution in mind, it is possible to craft reforms that help to protect the …

Black And Poor: The Grave Consequences Of Utah V. Strieff, Chanae L. Wood

St. Thomas Law Review

This Comment brings reconciliation between the majority and minority opinions in Strieff by proposing a solution that will uphold Fourth Amendment rights and public safety. Part II explores the Fourth Amendment by tracing the origins of the exclusionary rule, and then discusses the Court's first step in undermining constitutional rights in Terry v. Ohio. Part III discusses the Court's trend of weakening Fourth Amendment rights and provides an in-depth analysis of the impact its most recent Fourth Amendment ruling, Strieff will have on Blacks and lower socioeconomic citizens. Part IV provides a comprehensive solution, suggesting a warrant hierarchy system that …

The Saving Grace Of Public Defense? Is The “Client-Choice” Method A Cure-All For Problems That Plague This Overburdened System? 50 J. Marshall L. Rev. 307 (2017), Sean Baker

UIC Law Review

No abstract provided.

Reasonable Doubt: Is It Defined By Whatever Is At The Top Of The Google Page?, 50 J. Marshall L. Rev. 933 (2017), Bobby Greene

UIC Law Review

No abstract provided.

Responsibly Irresponsible?: An Analysis Of The Medically Noncompliant Offender’S Federal Insanity Defense, Geoffrey Andreu

Cardozo Law Review de•novo

This Note will argue that the federal judiciary should not consider a defendant’s failure to take prescription medication when evaluating that defendant’s insanity defense unless the legislature specifically amends the statute governing the insanity defense.

Zealous And Effective Advocacy: An Assessment Of The Constitutional Right To Counsel Within A Drug Court Proceeding, Sarah Kirschenheiter

Cardozo Law Review de•novo

This Note will proceed in three parts. Part I will explain the drug court model by detailing the key components of drug courts in general and by providing an outline of the three predominant drug court models. Additionally, this Part will provide an overview of the right to counsel in traditional criminal proceedings, including probation revocation hearings. Part II will contemplate why the non-traditional stages of a drug court proceeding may constitutionally require counsel and why the defense attorney’s role within the context of drug court is problematic. Using the standards that govern traditional criminal proceedings, Part III will argue …

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

Pricing Justice: The Wasteful Enterprise Of America's Bail System, Liana M. Goff

Brooklyn Law Review

This note contributes to the growing national consensus about the need to reduce the population of low-income defendants who are detained pretrial due to their inability to afford bail. It documents the efforts undertaken by certain state actors to mitigate the harmful consequences of wealth-based pretrial systems and critiques the so-called alternatives to cash bail—namely, supervised release programs. This note suggests that lawmakers eliminate the role of finances and incarceration in pretrial procedure altogether and recommends an approach to criminal procedure that is based not only on heuristic methods of measuring cost and benefit but also normative principles of good …

Finally, A True Elements Test: Mathis V. United States And The Categorical Approach, Rebecca Sharpless

Brooklyn Law Review

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of mass incarceration, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses …

“Lucky” Adnan Syed: Comprehensive Changes To Improve Criminal Defense Lawyering And Better Protect Defendants’ Sixth Amendment Rights, Meredith J. Duncan

Brooklyn Law Review

Almost twenty years ago, seventeen years old and accused of murder, Adnan Syed was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and sentenced to life in prison. The reality is that Syed is just another casualty of the criminal justice system’s tolerance of poor defense lawyering. The substandard quality of legal representation highlighted in Syed’s case continues to harm countless defendants nationwide, and the promise of effective assistance of counsel for the accused remains unfulfilled due to a combination of factors. This article suggests comprehensive changes to certain aspects of the criminal justice …

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

Costs Of Pretrial Detention, Shima Baughman

Utah Law Faculty Scholarship

Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …

Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

Our Criminal Laws, Our Constitution, Sarah Seo

Faculty Scholarship

This essay reviews three recently published books that further explore this insight in the twentieth century. At first glance, vagrancy laws, the free will problem, and criminal records may seem to share little in common. But each study illuminates how criminal laws have defined our nation by creating what historian Barbara Welke has termed "borders of belonging," a boundary that laws create between people who enjoy full citizenship and those who do not. After all, a conviction and imprisonment are acts of social and political exclusion. Even the policing of suspected offenders often reveals who does not completely belong.

The …

Examining Rule 11(B)(1)(N) Error: Guilty Pleas, Appellate Waiver, And Dominguez Benitez, Leanna C. Minix

Washington and Lee Law Review

No abstract provided.

How To Assess The Real World Application Of A Capital Sentencing Statute: A Response To Professor Flanders’S Comment, John Mills

Faculty Scholarship

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope. To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst. Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point. This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract. This response focuses on Arizona’s capital sentencing regime …

Dismissals As Justice, Anna Roberts

Faculty Scholarship

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

Sb 1052: Miranda Rights For Minors, Albert G. Mendoza

University of the Pacific Law Review

No abstract provided.

Mental Health Courts And Sentencing Disparities, E. Lea Johnston, Conor P. Flynn

UF Law Faculty Publications

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court—including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of …

Bargained-For-Justice: Lessons From The Italians?, Michael Vitello

University of the Pacific Law Review

No abstract provided.