Digital Commons Network^™

Treatment Sentences, Evelyn Lia Malavé

BYU Law Review

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences …

Innocence And Habeas Corpus: A Call For Equitable Reforms, Paige Skousen Nelson

BYU Law Review

Congress intended the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to codify the Burger and Rehnquist Courts’ habeas corpus jurisprudence, which aimed to establish finality and innocence as gatekeepers to the “Great Writ.” But in practice, AEDPA hinders innocence claims, particularly claims of legal innocence.

This Note agrees that innocence should be one of the most important considerations in granting writs but argues that it is not as valued as Congress intended. This Note proposes two congressional reforms to reinstate innocence to its paramount role without compromising finality: first, amending the federal habeas petition rule to allow petitioners …

Octavio Macias Ramirez, Petitioner V. The Honorable Clemens Landau, Salt Lake City Justice Court, Respondent.: Response To Petition For Extraordinary Writ

Utah Appeals Court Briefs

from Order of Dismissal Without Prejudice in SALT LAKE CITY v. OCTAVIO

State Of Utah V. Dean Spencer : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM THE FOURTH DISTRICT COURT, UTAH COUNTY, STATE OF UTAH, FROM A CONVICTION ON ONE COUNT OF DUI, A CLASS B MISDEMEANOR, BEFORE THE HONORABLE JUDGE DENISE PORTER

ALEXANDRA HERLONG (18206) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General PETER REICHMAN Utah County Attorney’s Office Counsel for Appellee

JENNIFER L. FORESTA (12212) Utah County Public Defender Assoc. Appeals Division Attorneys for Appellant

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

BYU Law Review

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

Bonnie Peragallo V. W&T Holdings And Jason Laursen : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT FOR CACHE COUNTY, STATE OF UTAH HONORABLE SPENCER WALSH

ROBERT JANICKI MATTHEW JONES STRONG AND HANNI Counsel for Appellee

PETER R. MIFFLIN – 12595 ROBERT J. DEBRY & ASSOCIATES Counsel for Appellant

State Of Utah, Plaintiff And Appellee V. Roy Benjamin Levering, Defendant And Appellant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from convictions and sentences for possession of a controlled substance with intent to distribute, a first degree felony; tampering with evidence, a class A misdemeanor; and other crimes in the Fifth Judicial District, Washington County, the Honorable Jeffrey C. Wilcox presiding

K. ANDREW FITZGERALD, Counsel for Appellant

CONNOR NELSON, SEAN D. REYES, JERRY JAEGER, Counsel for Appellee

State Of Utah V. Dean Spencer : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a conviction on one count of Driving Under the Influence, a Class B misdemeanor, in the Fourth Judicial District, Utah County, the Honorable Denise Porter presiding

JENNIFER FORESTA Utah County Public Defender Assoc. Appeals Division Counsel for Appellant

ALEXANDRA HERLONG (18206) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General PETER REICHMAN Utah County Attorney’s Office Counsel for Appellee

James Mortensen V. Labor Commission, Quality Pool & Spa : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

AN APPEAL FROM THE LABOR COMMISSION OF UTAH

Jaceson Maughan/Christopher Hill Utah Labor Commissioner Labor Commission of Utah CODY G. KESLER RICHARDS BRANDT MILLER NELSON Attorneys for Respondents

Loren M. Lambert, No. 5101 Attorney for Appellant ARROW LEGAL SOLUTIONS GROUP, PC

Full Issue

BYU Law Review

No abstract provided.

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

Sports Medicine Research And Testing Laboratory, Petitioner V. Board Of Equalization Of Salt Lake County, State Of Utah, And Utah State Tax Commission, Respondents., Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Petition for Review of Final Decision of the Utah State Tax Commission

Erin Middleton Assistant Solicitor General Michelle Lombardi Assistant Attorney General Attorneys for Respondent Utah State Tax Commission Bradley C. Johnson Timothy A. Bodily Deputy District Attorneys Attorneys for Respondent Board of Equalization of Salt Lake County

Samuel A. Lambert (11915) Bruce Olson (2468) RAY QUINNEY & NEBEKER P.C. Attorneys for Sports Medicine Research and Testing Laboratory

State Of Utah, Plaintiff And Appellee, V. Donald Dee Anderson, Defendant And Appellant.: Brief Of Appellee

Utah Appeals Court Briefs

Brief of Appellee Appeal from a judgment of conviction on one count of Possession of an Explosive Device, a second-degree felony, in the Second Judicial District, Davis County, the Honorable Michael S. Edwards, presiding

The State Of Utah, Plaintiff/Appellee, V. Michael Manuel Chacon, Defendant/Appellant: Reply Brief Of Appellant

Utah Appeals Court Briefs

Appeal from a jury trial in the Seventh Judicial District, in and for Grand County, State of Utah, the Honorable Don M. Torgerson presiding.

Sports Medicine Research And Testing Laboratory, Petitioner V. Board Of Equalization Of Salt Lake County, State Of Utah, And Utah State Tax Commission, Respondents., Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Brief of Respondent Utah State Tax Commission On Petition for Review of a Final Decision of the Utah State Tax Commission, Appeal No. 20-1618

Samuel A. Lambert Bruce Olson RAY QUINNEY & NEBEKER P.C. Attorneys for Petitioner Sports Medicine Research and Testing Laboratory

Erin T. Middleton (10666) Assistant Solicitor General Michelle Lombardi (14085) Assistant Attorney General Sean D. Reyes (7969) Utah Attorney General Attorneys for Respondent Utah State Tax Commission

The Right To Be Proselytized Under International Law, Ryan Cheney

BYU Law Review

Legal analyses of proselytism have tended to focus on the rights of the proselytizer and on the right of the target of proselytism, or “proselytizee,” to be free from such “interference.” However, such analyses do not fully account for all rights involved in proselytism. When people are prevented from being proselytized, such as by law or by persecution, an important consequence is that they are cut off from a significant source of information on and mechanism for exploring and joining other religions. Despite stigmatizations of proselytism, many people regularly accept it and learn about and join other faiths through it. …

On The Place Of Self-Defense In Public Life: A Hobbesian Critique Of The Supreme Court’S Second Amendment, Rafi Reznik

Brigham Young University Journal of Public Law

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of …

Sports Medicine Research And Testing Laboratory, Petitioner V. Board Of Equalization Of Salt Lake County, State Of Utah, And Utah State Tax Commission, Respondents., Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Petition for Review of Final Decision of the Utah State Tax Commission: Brief of Appellant

Erin Middleton Assistant Solicitor General Michelle Lombardi Assistant Attorney General Attorneys for Respondent Utah State Tax Commission Bradley C. Johnson Timothy A. Bodily Deputy District Attorneys Attorneys for Respondent Board of Equalization of Salt Lake County

Samuel A. Lambert (11915) Bruce Olson (2468) RAY QUINNEY & NEBEKER P.C. Attorneys for Sports Medicine Research and Testing Laboratory

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Taming Dangerousness, Shima Baradaran Baughman

Faculty Scholarship

In every courtroom across the country each day, judges determine whether thousands of individuals are either released or held before trial. These speedy and seemingly minor decisions have profound impacts on an accused’s fate and on national incarceration rates. Indeed, over the last fifty years, these individual decisions have led to a four-hundred percent increase in pretrial detention in the United States. This increase in pretrial detention accounts for 99% of the jail growth in the last fifteen years, despite record decreases in arrest and crime rates. At the same time, the United States has witnessed three meaningful periods of …

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

The Original “Market” Understanding Of The Commerce Clause: Insights From Early Federal Government Practice And Precedent, Robert J. Pushaw Jr.

BYU Law Review

No abstract provided.

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

BYU Law Review

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

A Memorial And Remonstrance Against Taxation Of Churches, Reece Barker

BYU Law Review

No abstract provided.

Inside The Black Box Of Prosecutor Discretion, Shima Baradaran Baughman, Megan S. Wright, Christopher T. Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Informal Governance Of The United States, Edward Lee

Brigham Young University Journal of Public Law

No abstract provided.

The Case Of The Smart City, Bruce Peabody, Kyle Morgan

Brigham Young University Journal of Public Law

January 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our …

Reforming State Bail Reform, Shima Baradaran Baughman

Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

Strict Liability For The Information Age, Kevin Alden

BYU Law Review

No abstract provided.