Digital Commons Network^™

A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis

Washington Law Review

Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …

Lethal Injections: States Medicalize Execution, Joel B. Zivot

University of Richmond Law Review

No abstract provided.

Centralized Prosecution: Cross-Designated Prosecutors And An Unconstitutional Concentration Of Power, Haley White

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

Experimental Execution, Seema K. Shah

Washington Law Review

On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will …

A Pink Cadillac, An Iq Of 63, And A Fourteen-Year-Old From South Carolina: Why I Can No Longer Support The Death Penalty, Mark Earley Sr.

University of Richmond Law Review

No abstract provided.

Has The "Machinery Of Death" Become A Clunker?, Stephen F. Smith

University of Richmond Law Review

No abstract provided.

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

University of Richmond Law Review

No abstract provided.

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

University of Richmond Law Review

No abstract provided.

Interrogation Policies, Brandon L. Garrett

University of Richmond Law Review

No abstract provided.

Making Sure We Are Getting It Right: Repairing "The Machinery Of Death" By Narrowing Capital Eligibility, Ann E. Reid

University of Richmond Law Review

No abstract provided.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

    The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

    This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

University of Richmond Law Review

No abstract provided.

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Faculty Scholarship

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …

Keynote Speaker, Jonathan Rapping

Working in the Public Interest Conferences

Keynote address presented by president and founder of Gideon’s Promise and director of the honors program in criminal justice at Atlanta’s John Marshall Law School, lecturer on law at Harvard Law School, 2014 MacArthur Foundation fellow and "genius grant" recipient, and 2013 Public Interest Scholar in Residence at Touro Law School.

The #Ferguson Effect: Opening The Pandora’S Box Of Implicit Racial Bias In Jury Selection, Sarah Jane Forman

NULR Online

No abstract provided.

Hidden Racial Bias: Why We Need To Talk With Jurors About Ferguson, Patrick C. Brayer

NULR Online

No abstract provided.

Post-Sentencing Appellate Waivers, Kevin Bennardo

University of Michigan Journal of Law Reform

A sentencing appellate waiver is a criminal defendant’s promise not to appeal her sentence. These provisions routinely appear in federal defendants’ plea agreements. With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the waiver’s scope. Using models of judicial behavior and empirical studies, this Article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process. As a solution, the Article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

Leveraging Predictive Policing Algorithms To Restore Fourth Amendment Protections In High-Crime Areas In A Post-Wardlow World, Kelly K. Koss

Chicago-Kent Law Review

Rapid technological changes have led to an explosion in Big Data collection and analysis through complex computerized algorithms. Law enforcement has not been immune to these technological developments. Many local police departments are now using highly advanced predictive policing technologies to predict when and where crime will occur in their communities, and to allocate crime-fighting resources based on these predictions.

Although predictive policing technology has an array of the potential uses, the scope of this Note is limited to addressing how the statistical outputs from these technologies can be used to restore eroded Fourth Amendment rights in alleged high-crime areas. …

Oversight Hearing On Juvenile Justice In Indian Country: Challenges And Promising Strategies, Addie C. Rolnick

Congressional Testimony

In her testimony before the United States Senate Committee on Indian Affairs, Prof. Rolnick describes her research and recommendations concerning how to improve juvenile justice for American Indian and Alaska Native youth.

Victim Or Thug? Examining The Relevance Of Stories In Cases Involving Shootings Of Unarmed Black Males, Sherri Keene

Faculty Scholarship

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

Youth Charged As Adults: The Use And Outcomes Of Transfer In Baltimore City, Jason R. Tashea, Al Passarella

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Make Them Hear You: Participatory Defense And The Struggle For Criminal Justice Reform, Janet Moore, Marla Sandys, Raj Jayadev

Faculty Articles and Other Publications

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration. This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems. After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives. First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard. Second, …

The Immortal Accusation, Lindsey Webb

Sturm College of Law: Faculty Scholarship

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering its larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to …

In The Courts: Sentencing Juvenile Offenders, Hsin-Hisn Lee

Children's Legal Rights Journal

No abstract provided.

Stepping Beyond Nuremberg’S Halo: The Legacy Of The Supreme National Tribunal Of Poland, Mark A. Drumbl

Scholarly Articles

The Supreme National Tribunal of Poland (Najwyzszy Trybunal Narodowy (Tribunal)) operated from 1946 to 1948. It implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This article unpacks two of the Tribunal’s trials, that of Rudolph Hoess (Kommandant of Auschwitz (Oswiecim) and Amon Goeth (commander of the Krakow-Plaszow labour camp). Following an introduction, the article proceeds in four sections. Section 2 sets out the Tribunal’s provenance and background, offering a flavour of the politics and pressures that contoured (and co-opted) its activities so as to recover its place within the imagined spaces of international criminal accountability. …