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Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

The Pretrial Fairness Act: Certainties And Suspicions, Ethan Mora

Public Interest Law Reporter

No abstract provided.

12+ Hours A Day: How Juvenile Detention Centers Diminish The Goal Of Rehabilition In Juvenile Justice, Melanie Persangi

Public Interest Law Reporter

No abstract provided.

Chicago Is Not A Sundown Town: A Closer Look At Youth Curfews, Nneka Ugwu

Public Interest Law Reporter

No abstract provided.

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

“Cancel Culture” And Criminal Justice, Steven Arrigg Koh

Faculty Scholarship

This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Scholarly Works

No abstract provided.

The Case For Pattern-Or-Practice Investigations Against District Attorney's Office, Rory Fleming

University of San Francisco Law Review

No abstract provided.

Race And Washington’S Criminal Justice System 2021: Report To The Washington Supreme Court, Task Force 2.0 Research Working Group

Seattle University Law Review

This report is an update on the 2011 Preliminary Report on Race and Washington’s Criminal Justice System. This update does not include as context the history of race discrimination in Washington, and readers are encouraged to view the 2011 report for its brief historical overview.14 The 2011 report began with that historical overview because the criminal justice system does not exist in a vacuum. Instead, it exists as part of a legal system that for decades actively managed and controlled where people could live, work, recreate, and even be buried.

Members of communities impacted by race disproportionality in Washington’s criminal …

Videotaping Interrogations In Pennsylvania: A Wilson Center For Science And Justice And Quattrone Center For The Fair Administration Of Justice Report, Rachel Leigh Greenspan, Adele Quigley-Mcbride, Sydney Lapine, Marissa Bluestine, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Victims’ Rights Revisited, Benjamin Levin

Scholarship@WashULaw

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa

Scholarship@WashULaw

The saying goes, when life gives you lemons, make lemonade. When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and
Ramos v. Louisiana. On their face, the cases teach …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Expanding Statutes Of Limitations For Sex Crimes: Bad Public Policy, Michael Vitiello

McGeorge School of Law Scholarly Articles

The Victims’ Rights Movement has been one of the most consequential political forces in the United States over the past fifty-plus years. It has scored major legislative victories across the country. Every state and the federal government have adopted major laws advanced by the movement. After years of expanding prison populations, many policymakers and scholars have begun to question the wisdom of many of the movement’s legislative victories.

Despite current pushback against the movement, the movement and members of the public are pushing for the elimination or dramatic extensions of statutes of limitations for sex offenses and child-sex offenses. Such …

Ending The Discriminatory Pretrial Incarceration Of People With Disabilities: Liability Under The Americans With Disabilities Act And The Rehabilitation Act, Margo Schlanger, Elizabeth Jordan, Roxana Moussavian

Articles

Our federal, state, and local governments lock up hundreds of thousands of people at a time—millions over the course of a year—to ensure their appearance at a pending criminal or immigration proceeding. This type of pretrial incarceration—a term we use to cover both pretrial criminal detention and immigration detention prior to finalization of a removal order—can be very harmful. It disrupts the work and family lives of those detained, harms their health, interferes with their defense, and imposes pressure on them to forego their trial rights and accede to the government’s charges in an effort to abbreviate time behind bars. …

Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill

Articles

Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

The Character Of Jury Exclusion, Anna Offit

Faculty Publications

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury …

Fundamental Criminal Procedure (2022 Edition), Fredric I. Lederer

Faculty Publications

Fundamental Criminal Procedure explores American criminal procedure in a format ultimately destined for electronic publication. Because many students devote a great deal of their class time to taking notes, often at the expense of creative analysis, the text is intended to supply all of the necessary “black letter law” needed for mastery of the subject. The materials are, however, far more than a “study aid.” They emphasize where appropriate the crucial philosophical and policy questions and issues inherent in the subject. Periodic “Review Questions” require understanding application of academic material in a pragmatic context. “Legal Briefs” require the student to …

Prosecutorial Nonenforcement And Residual Criminalization, Justin Murray

Publications

In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws—laws prohibiting marijuana possession, sentencing enhancements, laws authorizing the death penalty, and much more—because they see those laws as unjust and incompatible with core reform objectives. Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Race In Washington’S Juvenile Legal System: 2021 Report To The Washington Supreme Court, Task Force 2.0 Juvenile Justice Subcommittee

Seattle University Law Review

Part I of this report provides the core work of the subcommittee and is intended to function as a stand-alone document, expressed in youth- friendly language, that sets forth: (1) the youth-articulated goals for systemic change to the juvenile legal system; (2) a narrative of how the system currently works and the harms caused; and (3) the change needed to bring about the youth-articulated goals for systemic change. This document is intended to be a youth-centered blueprint for change—a tool for community advocates, a framework for policy makers, and a call-in to the many institutional actors to center the leadership …

The Informed Jury, Daniel Epps, William Ortman

Scholarly Works

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

The Fourth Amendment In The Age Of Autonomous Vehicles, Tracy Hresko Pearl

Faculty Articles

Autonomous vehicles exist at the intersection of two extremely turbulent areas of Fourth Amendment jurisprudence—traffic stops and emerging technologies—and have implications for virtually every major search and seizure doctrine developed over the last century. Complicating matters even further is the fact that car manufacturers are developing these vehicles at varying rates, meaning that vehicles with differing levels of automation are being introduced onto the consumer market at different (and often unpredictable) times. Each level of vehicle automation, in turn, poses unique issues for law enforcement. Semi-autonomous (Levels 2 and 3) vehicles make it extremely difficult for police to distinguish between …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

The Perils Of Private Prosecutions, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.

Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …

For Grand Juries, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

Citizen's Arrest And Race, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

Building Fierce Empathy, Binny Miller

Scholarly Articles in Law Reviews & Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …