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Kids, Cognition, And Confinement: Evaluating Claims Of Inadequate Access To Mental Health Care In Juvenile Detention Facilities, Lydia G. Mrowiec

William & Mary Journal of Race, Gender, and Social Justice

In the United States, almost 60,000 juveniles are incarcerated in juvenile jails and prisons every day, and, as of March 2021, at least seventy percent of juveniles in the juvenile justice system have a mental health condition. For many young adults, prison and detention centers have “become the avenue of last resort” for treatment of those mental health conditions. However, juvenile detention facilities lack the support and resources to provide adequate care, which has led to high recidivism in the juvenile population. Juveniles, and individuals on their behalf, can challenge inadequate access to mental health resources by bringing claims under …

Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson

William & Mary Journal of Race, Gender, and Social Justice

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that deeply conservative states will seek to criminalize abortion and impose extremely harsh sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the …

Promoting Healing And Avoiding Retraumatization: A Proposal To Improve Mental Health Care For Detained Unaccompanied Minors Through A Best Interests Of The Child Standard, Francesca J. Babetski

William & Mary Law Review

Part I of this Note will describe the circuit split. It will provide background on the A.M. [A.M. v. Luzerne County Juvenile Detention Center] and Doe 4 cases, including an explanation of the major precedents on which the Third and Fourth Circuits based their respective decisions. Then, Part II will argue that A.M. and its deliberate indifference standard cannot appropriately be applied in cases involving detained unaccompanied minors, also called Unaccompanied Alien Children (UACs). This almost twenty-year-old standard does not consider the latest information about immigration policy and the unique mental health needs of UACs such as Doe …

Legal Order At The Border, Evan J. Criddle

Faculty Publications

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law …

Trump's Indictment Stretches Us Legal System In New Ways -- A Former Prosecutor Explains 4 Key Points To Understand, Jeffrey Bellin

Popular Media

No abstract provided.

The Brief (Edition #25, March 2023), William & Mary Law School

The Brief

No abstract provided.

Core And Periphery In Constitutional Law, R. George Wright

William & Mary Law Review Online

This paper embarks on an excursion through a number of the most vital constitutional rights cases, and other contexts as well, and seeks to show that the recurring judicial attempts to distinguish between core and peripheral areas within any given broad constitutional right are unnecessary and distracting. Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of any given broad constitutional right. Courts should instead focus—directly or indirectly—on their best assessment of …

Understanding Mass Incarceration In The Us Is The First Step To Reducing A Swollen Prison Population, Jeffrey Bellin

Popular Media

No abstract provided.

Let My People Go, Part One: Black Rebellion And The Second Amendment Political Necessity Defense, Kindaka Sanders

William & Mary Bill of Rights Journal

This Article argues that when an individual or group acts to protect a government-assailed constitutional right by criminal means, the doctrine of political necessity may serve as a constitutionally protected defense. The doctrine of political necessity builds on the common law doctrine of necessity. The necessity doctrine, also referred to as the “choice of evils” defense, exonerates an individual who creates a social harm to allay a greater harm to herself or others. Both state and federal courts have been especially reluctant to allow the use of the necessity defense in cases with political implications, in which the defendant acts …

Emerging Technology's Language Wars: Cryptocurrency, Carla L. Reyes

William & Mary Law Review

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

Reducing Community Violence While Protecting Civil Rights, Kami Chavis

Popular Media

No abstract provided.

"Civil Procedure Is What It's All About": Law School Dean A. Benjamin Spencer Reflects On Career, Molly Parks, A. Benjamin Spencer

Popular Media

No abstract provided.

Civil Rights Without Representation, Joanna C. Schwartz

William & Mary Law Review

Although much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice outside those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the …

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

Justice Alito's Laundry List: Highlights From Appendix C Of Bostock And A Roadmap For Lgbtq+ Legal Advocates, Peter Quinn

William & Mary Law Review

After a brief background on Bostock [v. Clayton County] in Part I, the bulk of this Note seeks to examine Justice Alito’s Bostock dissent and its potential future usefulness for LGBTQ+ advocates. Part II will analyze Justice Alito’s dissent and Appendix C, arguing that his concerns about Bostock’s consequences across other federal statutes fall into three primary categories of usefulness. The remaining Parts will survey these categories, including the “small potatoes” in Part III, the “blockbusters” in Part IV, and the “under-the-radar” areas in Part V. Part V takes particular notice of potential applications of Bostock’s …

Alcohol Misuse And Gun Violence: An Evidence-Based Approach For State Policy, Silvia Villarreal, Amy Bornhorst, Richard Bonnie, Kami Chavis, Ari Davis, Shannon Frattaroli, Kelly Roskam, Jeffrey Swanson, Joshua Horwitz

Faculty Publications

During the COVID-19 pandemic, excessive drinking increased by 21% and alcohol-related deaths increased approximately 25%.6 At the same time, gun sales increased by 40%, gun homicides by 35%, and gun suicides had the largest one-year increase ever recorded.

These alarming trends urge us to think about alcohol misuse as a risk factor for gun violence. To better understand this connection, the Consortium, in partnership with the Center for Gun Violence Solutions, developed this report to highlight the available research to inform policy. As detailed in this report, alcohol misuse is associated with a risk of dangerous firearm behaviors, interpersonal firearm …

Plea Bargains: Efficient Or Unjust?, Jeffrey Bellin, Erin Blondel, John Flynn, Elana Fogel, Anjelica Hendricks, Carissa Byrne Hessick

Faculty Publications

The vast majority of state and federal cases end in plea bargains. The practice has eased backlogs and may benefit some defendants — but the trade-offs, some say, are too steep. Is there a better way?

Religious Convictions, Anna Offit

Faculty Publications

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

The Tesla Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly …

Political Default. The Implications Of Weaponizing Global Financial Infrastructure, Lev E. Breydo

Faculty Publications

In response to Russia’s unlawful invasion of Ukraine, the U.S. has led a broad-based global coalition to punish the aggressor with an “unprecedented” sanction regime. Those measures have targeted “the Russian government’s basic tools to manage its macroeconomy,” with a particular emphasis on its sovereign debt. That concerted focus, as this Article empirically demonstrates through analysis of bond and credit default swap data, ultimately resulted in Russia’s first foreign currency debt default in over a century — despite the nation’s ability and seeming willingness to pay.

Notwithstanding aptly-deserved “just deserts” considerations, a forced — or “political” — Russian sovereign debt …

Policing Veterans: What The Veterans Affairs Police Can Illustrate About The Policing Of Disability In America, Zachary R.M. Outzen

Faculty Publications

The Department of Veterans Affairs Police (“VA Police”), a federal law enforcement agency tasked with law enforcement on Department of Veterans Affairs (VA) properties, has a shocking record of misconduct and brutality against veterans. Because the VA is the largest integrated healthcare system in the United States, the VA Police are primarily responsible for policing VA medical facilities. While issues facing the veteran community have largely been analyzed as separate from those facing the American public at large, VA medical facilities replicate broader socioeconomic trends in policing of vulnerable populations. Veterans receiving VA healthcare services are disproportionately likely to be …

Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen

William & Mary Bill of Rights Journal

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 …

Table Of Contents (V. 31, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.

Judges And Mass Incarceration, Carissa Byrne Hessick

William & Mary Bill of Rights Journal

It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …

Debiasing Criminal Justice, Sandra Guerra Thompson, Nicole Bremner Cásarez

William & Mary Bill of Rights Journal

The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a …

The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler

William & Mary Bill of Rights Journal

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will …

A World Without Prosecutors, Jeffrey Bellin

Faculty Publications

Bennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”

[...]

Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly …

Press Freedom Under Attack: 21st Century Threats To Journalists - And Democracy, Human Security Law Center, William & Mary Law School, Reves Center, College Of William & Mary

Miscellaneous Events

No abstract provided.

The Politics Of The Criminal Enforcement Of The U.S. Clean Air Act, Joshua Ozymy, Melissa Jarrell Ozymy

William & Mary Environmental Law and Policy Review

Criminal prosecution has always existed in a political context. Democratic and Republican presidents have treated environmental regulation very differently over time and this may have a profound effect on how the criminal enforcement of air pollution laws has proceeded in the United States both historically and in the future. There was enough of a bipartisan consensus to allow the institutionalization of resources for the policing and prosecution of air pollution crimes that began in the 1980s and lasted until the early 1990s, where criminal investigators and specialized prosecutors were hired; institutionalized places for these operations to specialize and collaborate were …

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

William & Mary Journal of Race, Gender, and Social Justice

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …