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The Anchorage, Alaska Municipal Pretrial Diversion Program: An Initial Assessment, Cory R. Lepage, Jeff D. May

Alaska Law Review

Pretrial diversion programs have the potential to prevent future criminal behavior through intervention and community based services. This may be particularly true for specific populations of offenders such as those with mental illness, substance abuse disorder, and those with co-occuring disorders. Pretrial diversion programs take low-level offenders out of the jail population, both reducing system overpopulation and costs of incarceration. The programs also provide speedy case processing for minor crimes resulting in savings to the court system and personnel. Pretrial diversion can help an offender avoid a criminal conviction and potentially avoid future criminal violations. Results indicate that most Anchorage …

Lessons From New Orleans: A Stronger Role For Public Defenders In Spurring Indigent Defense Reform, Ace M. Factor

Duke Law Journal

Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction.

The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a …

Foreword: How To Think About Law And Markets, Joseph Blocher, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

State Incentives, Plea Bargaining Regulation, And The Failed Market For Indigent Defense, Lisa Kern Griffin

Law and Contemporary Problems

No abstract provided.

The Market For Global Anticorruption Enforcement, Rachel Brewster, Samuel W. Buell

Law and Contemporary Problems

No abstract provided.

Arbitrary Detention? The Immigration Detention Bed Quota, Anita Sinha

Duke Journal of Constitutional Law & Public Policy

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at …

Giving Vulnerable Students Their Due: Implementing Due Process Protections For Students Referred From Schools To The Justice System, Meredith S. Simons

Duke Law Journal

There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to …

Rape Beyond Crime, Margo Kaplan

Duke Law Journal

Public health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles.

This Article argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Public health law provides more promising …

Safeguarding The Ada’S Antidiscrimination Mandate: Subjecting Arrests To Title Ii Coverage, Shanna Rifkin

Duke Law Journal

The news has been peppered with tragic stories of individuals with disabilities who have been killed or injured following police encounters. In the aftermath of these incidents, as injured parties seek accountability, a question looms: Can arrest proceedings violate the Americans with Disabilities Act?

The ADA was enacted to prohibit disability discrimination. The law had an ambitious agenda, supported by broad statutory authority, to ensure equality in all areas of public life for individuals with disabilities. But while the ADA has fostered integration into many aspects of modern life, one area remains deeply contested: arrests.

If Congress envisioned that Americans …

Searching For Adequate Accountability: Supervisory Priests And The Church’S Child Sex Abuse Crisis, Benjamin D. Wasserman

Duke Law Journal

In 2002, the Boston Globe published a report exposing child sex abuse by priests and a cover-up by supervisory priests. Supervisory priests—church officials who supervise lower-ranking priests—concealed reports of sexual abuse by lower-ranking priests and created substantial risks of sexual abuse to children. Prosecutors tried to hold supervisory priests accountable by turning to statutes that either did not capture the moral culpability of priests, like statutes prohibiting obstruction of justice or contributing to the delinquency of a minor; or that did not legally encompass their misconduct, like child-endangerment statutes. Child endangerment captures the moral culpability of supervisory priests’ misconduct, but …

Coordinating Compliance Incentives, Veronica Root

Faculty Scholarship

In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the …

Constraining Monitors, Veronica Root

Faculty Scholarship

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …

On Normative Effects Of Immigration Law, Emily Ryo

Faculty Scholarship

Can laws shape and mold our attitudes, values, and social norms, and if so, how do immigration laws affect our attitudes or views toward minority groups? I explore these questions through a randomized laboratory experiment that examines whether and to what extent short-term exposures to anti-immigration and pro-immigration laws affect people's implicit and explicit attitudes toward Latinos. My analysis shows that exposure to an anti-immigration law is associated with increased perceptions among study participants that Latinos are unintelligent and law-breaking. In contrast, Ifind no evidence that exposure to pro-immigration laws promotes positive attitudes toward Latinos. Taken together, these results suggest …

Actual Innocence And Wrongful Convictions, Brandon L. Garrett

Faculty Scholarship

In response to wrongful convictions, there has been a revolution in criminal procedure and in research in law and science. Scholars have increasingly studied the characteristics of known wrongful conviction cases and they have conducted interdisciplinary research designed to assess potential changes to procedures used in criminal cases. Scientific bodies have made important recommendations based on this research, and in response, a wide range of jurisdictions have adopted noteworthy changes designed to safeguard crucial types of evidence, such as confession, forensic, and eyewitness evidence, during police investigations and at trial. As a result, both law and science have come together …

Opposing International Justice: Kenya’S Integrated Backlash Strategy Against The Icc, Laurence R. Helfer, Anne E. Showalter

Faculty Scholarship

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures— politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government …

Aggressive Encounters & White Fragility: Deconstructing The Trope Of The Angry Black Woman, Trina Jones, Kimberly Jade Norwood

Faculty Scholarship

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype …

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis …

Convicting The Innocent Redux, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Patterns Of Error, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Inequality Rediscovered, Jedediah Purdy, David Singh Grewal

Faculty Scholarship

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last …

Capital Jurors In An Era Of Death Penalty Decline, Brandon L. Garrett, Daniel Krauss, Nicholas Scurich

Faculty Scholarship

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at …

The Boom And Bust Of American Imprisonment, Brandon L. Garrett

Faculty Scholarship

We are teetering at the edge of a mass incarceration binge. Lawmakers are reconsidering overly harsh criminal punishments. At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis. Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals. Second, I discuss law professor Sam Buell's "Capital Offenses," …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos

Faculty Scholarship

Project Safe Neighborhoods (PSN) is a federally funded initiative that brings together federal, state, and local law enforcement to reduce gun violence in urban centers. In Chicago, PSN implemented supply-side gun policing tactics, enhanced federal prosecution of gun crimes, and notification forums warning offenders of PSN’s heightened criminal sanctions. Prior evaluations provide evidence that PSN initiatives have reduced crime in the first few years of their operation. But over a decade after the program was established, we still know little about whether these effects are sustained over an extended period of time. This Article examines PSN Chicago, an anti-violence program …

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett

Faculty Scholarship

"Scientific evidence really nails this man to the wall," the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

The Decline Of The Virginia (And American) Death Penalty, Brandon L. Garrett

Faculty Scholarship

The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in three decades. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There has not been a new death sentence in Virginia since 2011. Only seven counties have imposed death sentences in the past decade in Virginia. There are now two or fewer trials a …

The Public Interest In Corporate Settlements, Brandon L. Garrett

Faculty Scholarship

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and …