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The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey
The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey
Faculty Scholarship
This study presents an empirical investigation of naturalization adjudication in the United States using new administrative data on naturalization applications decided by the U.S. Citizenship and Immigration Service (USCIS) between October 2014 and March 2018. We find significant group disparities in naturalization approvals based on applicants’ race/ethnicity, gender, and religion, controlling for individual applicant characteristics, adjudication years, and variation between field offices. Non-White applicants and Hispanic applicants are less likely to be approved than non-Hispanic White applicants, male applicants are less likely to be approved than female applicants, and applicants from Muslim-majority countries are less likely to be approved than …
Forensic Science In Legal Education, Brandon L. Garrett, Glinda S. Cooper, Quinn Beckham
Forensic Science In Legal Education, Brandon L. Garrett, Glinda S. Cooper, Quinn Beckham
Faculty Scholarship
In criminal cases, forensic science reports and expert testimony play an increasingly important role in adjudication. More states now follow a federal reliability standard, following Daubert v. Merrell Dow Pharmaceuticals and Rule 702, which calls upon judges to assess the reliability and validity of such scientific evidence. Little is known about what education law schools provide regarding forensic and scientific evidence or what types of specialized training they receive on scientific methods or evidence. Whether law schools have added forensic science courses to their curricula in recent years was not known. To better understand the answers to those questions, in …
Models Of Bail Reform, Brandon L. Garrett
Models Of Bail Reform, Brandon L. Garrett
Faculty Scholarship
Bail reform is an urgent topic in the United States and internationally, but what constitutes reform and how to accomplish reform goals is contested. Jails are a modern epicenter of incarceration, with a stunning growth in American jail populations over the past four decades despite declines in both arrests and crime. As many as sixty percent of the half million people currently in jails have not been convicted but are instead detained pretrial. Prior waves of bail reform produced a system largely reliant on secured bonds, which require up-front cash payments to avoid jail time before trial. More recent reform …
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Faculty Scholarship
In her nearly thirty years on the United States Supreme Court, Justice Ruth Bader Ginsburg issued momentous decisions and significant dissents concerning constitutional guarantees of equality. She is best known for her leadership – as an advocate, scholar, judge, and justice – on issues of gender discrimination. Although one might expect related commitments to civil liberties to shape cases concerning the criminal justice process, Justice Ginsburg’s mark on constitutional criminal procedure appears comparatively faint.
Brief Of R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, And Ellen C. Yaroshefsky As Amici Curiae In Support Of Petitioner, R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, Ellen C. Yaroshefsky
Brief Of R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, And Ellen C. Yaroshefsky As Amici Curiae In Support Of Petitioner, R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, Ellen C. Yaroshefsky
Faculty Scholarship
No abstract provided.
Toward An Optimal Decarceration Strategy, Ben Grunwald
Toward An Optimal Decarceration Strategy, Ben Grunwald
Faculty Scholarship
With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public, and widely varying timeframes to …
Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Michael Frakes, Rohit Asirvatham
Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Michael Frakes, Rohit Asirvatham
Faculty Scholarship
This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a laxer standard, …
Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen
Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen
Faculty Scholarship
Local jails in the United States incarcerate millions of people each year. The COVID-19 pandemic made jail health a pressing public health concern nationally, where releasing individuals from jails occurred across the country in order to prevent pandemic spread. But releases also faced substantial resistance and exposed long-standing challenges in delivering adequate healthcare in jail settings. People in jail have substantially higher levels of medical need than individuals in the general population, with large numbers having serious mental illnesses and substance use disorders. Further, overcrowded conditions and poor healthcare standards and delivery make jails harmful to those already-vulnerable people. What …
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
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.
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
Faculty Scholarship
A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …
Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips
Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips
Faculty Scholarship
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …
The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett
The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett
Faculty Scholarship
Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …
The Trajectory Of Federal Gun Crimes, Jacob D. Charles, Brandon L. Garrett
The Trajectory Of Federal Gun Crimes, Jacob D. Charles, Brandon L. Garrett
Faculty Scholarship
Federal gun prosecutions have been a significant part of the federal docket for decades. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution and possession of particular weapons such as machine guns to use by drug traffickers and individual possession of !rearms by felons. Second, we describe how in practice gun charges have adapted to criminal law priorities of Congress and federal prosecutors over time. More recently, they became prominent in connection with immigration prosecutions, while in the 1980s, drug gangs were the priority. During this time, …
Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon
Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon
Faculty Scholarship
No abstract provided.
Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli
Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli
Duke Journal of Constitutional Law & Public Policy Sidebar
Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …
Nathan Chapman, Gerald B. Tjoflat
Nathan Chapman, Gerald B. Tjoflat
Special Collections
A discussion with Judge Tjoflat regarding litigation tactics, ethics, and the growth of magistrates’ system.
Hon. William F. Jung, Gerald B. Tjoflat
Hon. William F. Jung, Gerald B. Tjoflat
Special Collections
A discussion with Judge Tjoflat regarding the investigation into Judge Alcee Hastings’ conduct, which led to his impeachment and conviction by the Senate.
Hon. Timothy Corrigan, Gerald B. Tjoflat
Hon. Timothy Corrigan, Gerald B. Tjoflat
Special Collections
A discussion with Judge Tjoflat regarding his involvement on the Judicial Conference Committee — probation, sentencing, bail reform (1973-1989).
Foreword, Jeff Ward
Beyond The Prediction Paradigm: Challenges For Ai In The Struggle Against Organized Crime, Paula Helm, Thilo Hagendorff
Beyond The Prediction Paradigm: Challenges For Ai In The Struggle Against Organized Crime, Paula Helm, Thilo Hagendorff
Law and Contemporary Problems
No abstract provided.
The Gay Perjury Trap, Christopher R. Leslie
The Gay Perjury Trap, Christopher R. Leslie
Duke Law Journal
In Bostock v. Clayton County, the Supreme Court held Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can …
Selective Justice: A Crisis Of Missing And Murdered Alaska Native Women, Megan Mallonee
Selective Justice: A Crisis Of Missing And Murdered Alaska Native Women, Megan Mallonee
Alaska Law Review
Across the country, Indigenous women are murdered more than any other population and go missing at disproportionate rates. This crisis of missing and murdered Indigenous women is amplified in Alaska, where the vast landscape, a confusing jurisdictional scheme, and a history of systemic racism all create significant barriers to justice for Alaska Native women. This Note examines the roots of the crisis and calls for a holistic response that acknowledges the role of colonialism, Indigenous genocide, and governmental failures. While this Note focuses on the epidemic of violence against Alaska Native women in particular, it seeks to provide solutions that …
The Air We All Breathe: Internet Bans In Probation Conditions— Dalton V. State, Kristen M. Renberg, Angela Sbano
The Air We All Breathe: Internet Bans In Probation Conditions— Dalton V. State, Kristen M. Renberg, Angela Sbano
Alaska Law Review
In today’s world, the Internet is synonymous with opportunity. Recently, the Supreme Court has even recognized a First Amendment right to access the Internet. However, it is still common practice to assign the special conditions of Internet bans or restrictions for individuals on parole or supervised release. Courts have split on how to strike a balance between the goal of deterrence and protection of an individual’s rights. The Court of Appeals of Alaska weighed into this ongoing debate in Dalton v. State, by holding that a restriction requiring prior approval from a parole officer before any and all Internet use …
Meaningless Or Mandatory?: Automatic Probation's Revival And The Rule Of Lenity's Fall In Chinuhuk V. State, Kate Goldberg, Macklin Willigan
Meaningless Or Mandatory?: Automatic Probation's Revival And The Rule Of Lenity's Fall In Chinuhuk V. State, Kate Goldberg, Macklin Willigan
Alaska Law Review
Alaska’s common-law probation system requires that the period of supervision imposed is accompanied by a suspended term of imprisonment. Violation of probation conditions may trigger this suspended term, sending the probationer to prison. Should the probationer complete the entire suspended sentence, he or she is then usually eligible for discharge from probation. In Chinuhuk v. State, the Alaska Supreme Court held that the state legislature had abrogated this traditional scheme with respect to felony sex offenders, replacing it with one that allowed probation to continue although the offenders had completed their suspended terms of imprisonment. This Comment argues that in …
Othering Across Borders, Steven Arrigg Koh
Othering Across Borders, Steven Arrigg Koh
Duke Law Journal Online
Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.
Probable Cause And Performing "For The People", Irene Oritseweyinmi Joe
Probable Cause And Performing "For The People", Irene Oritseweyinmi Joe
Duke Law Journal Online
The summer of 2020 presented the American public with two very different versions of how a state’s top prosecutor might respond to excessive use of force by law enforcement. In Kentucky, Attorney General Daniel Cameron was criticized for his conduct after stories emerged of his biased presentation to a grand jury contemplating whether officers should face criminal charges for killing an unarmed person, Breonna Taylor, in her own home. In Minnesota, Attorney General Keith Ellison proved to be less controversial as public sentiment emphasized his willingness to pursue the type of justice that the public demanded against all of the …
Jailhouse Immigration Screening, Eisha Jain
Jailhouse Immigration Screening, Eisha Jain
Duke Law Journal
Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases …
The Law Of Lenity: Enacting A Codified Federal Rule Of Lenity, Maisie A. Wilson
The Law Of Lenity: Enacting A Codified Federal Rule Of Lenity, Maisie A. Wilson
Duke Law Journal
The rule of lenity is an ancient canon of statutory construction that requires courts to find in favor of criminal defendants charged under ambiguous statutes. Traditionally, lenity endorses important constitutional concerns regarding due notice, consistent enforcement of law, and legislative supremacy. In modern courts, if lenity were regularly—and properly—applied, it could combat important social problems that plague our criminal justice system. Ambiguous laws allow government actors to arbitrarily target disfavored groups. And more generally, ambiguity within criminal law contributes to overcriminalization, wanton punishment, and capricious enforcement. As the volume of federal criminal law continues to expand, this overcriminalization leads to …
The Agent’S Problem, Asaf Eckstein, Gideon Parchomovsky
The Agent’S Problem, Asaf Eckstein, Gideon Parchomovsky
Duke Law Journal
The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had a long-lasting impact on corporate-law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem has surfaced: what we call the “reverse agency problem.” The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms, including pretrial diversion agreements and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements with law enforcement authorities as expeditiously …
Who Protects Whom: Federal Law As A Floor, Not A Ceiling, To Protect Students From Inappropriate Use Of Force By School Resource Officers, Elsa Haag
Duke Journal of Constitutional Law & Public Policy Sidebar
Over the past forty years, students in the U.S. have experienced increasingly strict school discipline policies and increased police presence in schools. Sent into schools with the aim of improving security in the wake of mass shootings, school resource officers (SROs) are sworn law enforcement regularly assigned to schools. But there is a paucity of evidence that SROs are effective in preventing mass shootings or provide other significant benefits. Instead, research shows that the presence of SROs results in students achieving less and experiencing more physical and emotional harm, with long-term implications and costs for individuals and communities. As trained …