Digital Commons Network^™

Restructuring Clemency: The Cost Of Ignoring Clemency And A Plan For Renewal, Rachel E. Barkow, Mark Osler

Faculty Articles

The use of the pardon power is a necessary element in a fully functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clemency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the …

Youth Matters: The Need To Treat Children Like Children, Vincent M. Southerland

Faculty Articles

In 2012, the United States Supreme Court's decisions in Miller v. Alabama and Jackson v. Hobbs marked a sea change in the sentencing of children convicted of serious offenses. Miller ended mandatory life without parole sentences for youth who committed crimes when they were under the age of 18. The Court looked to the fundamental distinction between youth and adults to impose a categorical bar on mandatory life without parole sentences for adolescents. This article surveys the state of juvenile sentencing two decades before Miller emerged. In the early 1990s, racial stereotypes about the perceived typical juvenile criminal transformed the …

Brougham’S Ghost, Michael S. Ariens

Faculty Articles

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to …

American Military Justice: Responding To The Siren Songs For Reform, David A. Schlueter

Faculty Articles

Today, the American military justice system is being subjected to sweet and enticing calls for reform. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficient system of criminal justice that is applied in world-wide settings, in both peacetime and in war.

In the last several decades, an increasing number of commentators have recommended reforms to virtually every component of the military system. The most recent round of proposals arose from frustration and anger that many feel towards the military’s …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

A Cost-Benefit Analysis Of The Federal Prosecution Of Immigration Crimes, Kit Johnson

Faculty Articles

Immigration crimes are the most prosecuted federal crimes in America. This Article examines the benefits of the federal prosecution of immigration crimes (training, deterrence, and signaling/expression) and balances those benefits against the costs of such prosecutions (court- house costs, alternative prosecution, and incarceration). I conclude that deportation immediately following a conviction for an immigration crime appears to capture the key benefit of this system (signaling/expression) while alleviating its greatest expense (incarceration).

Griswold's Criminal Law, Melissa Murray

Faculty Articles

This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut. In the fifty years since it was announced, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception and secured a woman’s right to choose an abortion. Amidst these developments it is easy to overlook another aspect of Griswold’s history. Griswold also was part of a criminal law reform effort that sought to reimagine the state’s authority in the intimate lives of citizens and limit the use of criminal law as a means of enforcing moral conformity. In this regard, Griswold shares roots …

Client Choice For Indigent Criminal Defendants: Theory And Implementation, Stephen J. Schulhofer

Faculty Articles

With rare exceptions, existing systems for effectuating the indigent criminal defendant’s right to counsel range from disappointing to scandalously inadequate. Inadequate funding, though always prominently mentioned, is often merely a symptom of a problem that weakens almost all indigent defense systems, whether poorly funded or not -- the fact that the indigent defendant is never permitted to select his own attorney. In previous articles, I argued that arguments against client choice are almost entirely bogus. The concept nonetheless drew little interest, but that situation recently changed when the Texas Indigent Defense Commission put the proposal into effect on a trial …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …

Is Felony Murder The New Depraved Heart Murder: Considering The Appropriate Punishment For Drunken Drivers Who Kill, Dora W. Klein

Faculty Articles

In recognition of the increasing use of felony-murder statutes to prosecute drunken drivers who kill, this Article considers various criticisms and defenses of the felony-murder rule as they apply specifically to felony DWI cases. Part II of this Article discusses several recent precedent setting cases in which drunken drivers who killed were prosecuted under felony murder statutes. Part III explores whether such prosecutions are proper, given the existence of special narrower vehicular manslaughter provisions that a legislature might have intended to be the sole means of prosecuting drunk drivers who kill. Part IV discusses three particular limiting doctrines-merger, inherent dangerousness, …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington (Report), Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman, Mark A. Larranaga

Faculty Articles

Professor Boruchowitz and colleagues published the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought.

Mitigating Foul Blows, Mary Bowman

Faculty Articles

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and …

A Homeless Bill Of Rights (Revolution), Sara Rankin

Faculty Articles

This article examines an emerging movement so far unexplored by legal scholarship: the proposal and, in some states, the enactment of a Homeless Bill of Rights. This article presents these new laws as a lens to re-examine storied debates over positive and social welfare rights. Homeless bills of rights also present a compelling opportunity to re-examine rights-based theories in the context of social movement scholarship. Specifically, could these laws be understood as part of a new “rights revolution”? What conditions might influence the impact of these new laws on the individual rights of the homeless or the housed? On American …

Incarcerated Child Birth And “Broader Birth Control”: Autonomy, Regulation, And The State, Deborah Ahrens

Faculty Articles

In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn — quite understandably — to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This article supplements — and in crucial places challenges — the narrative implicit in those depictions by, first, …

The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall

Faculty Articles

Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, SWAT teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the “wars” on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into one of engaging …

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Articles

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, …

Reading Du Bois On East Africa: Epistemological Implications Of Apartheid Constructions Of Knowledge, Jesse Benjamin

Faculty Articles

This paper "reads" the scholarship of W. E. B. Du Bois and references East African history and historiography, including the broader pan-African tradition of which Du Bois was a leading member. Du Bois and his pan-African colleagues were often more accurate in their analyses and perception of biases and colonial myths than their Western counterparts. What is significant is that biases and myths that existed some fifty or more years before acknowledgement in the academy persist today, which raises important questions about the relationship between epistemology and identity, and between racial consciousness and the politics of academic production.

Unraveling The Digital Literacy Paradox: How Higher Education Fails At The Fourth Literacy., Meg Coffin Murray, Jorge Perez

Faculty Articles

Governments around the globe are recognizing the economic ramifications of a digitally literate citizenry and implementing systemic strategies to advance digital literacy. Awareness of the growing importance of digital literacy in today’s workplace coexists paradoxically with apparent foot-dragging on the part of many universities in assessment and amplification of these important competencies. This paper makes a case for digital literacy, presents models of the complex construct, and presents the results of a digital literacy assessment administered to students enrolled in a senior seminar course at a regional university in the United States. Reflection on the study results evoked our mantra …

From The War On Poverty To Pro Bono: Access To Justice Remains Elusive For Too Many, Including Our Veterans, Patricia E. Roberts

Faculty Articles

No abstract provided.

Justice Sotomayor And Criminal Justice In The Real World, Rachel E. Barkow

Faculty Articles

As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as a prosecutor and trial judge have influenced her Supreme Court opinions, which focus on how things actually work in practice, pay close attention to the specific facts of cases, and show sensitivity to the need for checks on government power. These commitments often lead Justice Sotomayor to reject formal rules that would promote predictability at the …

Methamphetamine Use Among Suburban Women: Implications For Nurse Practitioners, Annette Bairan, Miriam Boeri, Janice Morian

Faculty Articles

Purpose The purpose of this article is to provide nurse practitioners (NPs) with more effective strategies to diagnose methamphetamine (MA) use and assess healthcare needs of MA-using women. Data sources The researchers collected data from 65 suburban women who were MA users living in the suburbs of a large southeastern city in the United States. We conducted in-depth interviews and focus groups examining their life history, drug history, risk behaviors, and access to health care. The qualitative findings are examined here. Conclusions Three main themes emerged from the data: (a) gendered stigmatization of MA use; (b) MA-related health risk behaviors; …

Reforming The Grand Jury To Protect Privacy In Third Party Records, Andrew Taslitz, Stephen E. Henderson

Faculty Articles

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

But LEATPR exempts from its requirements access to records via a …

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Faculty Articles

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

The Dignity Of The Human Person: Catholic Social Teaching And The Practice Of Criminal Punishment, Dora W. Klein

Faculty Articles

The moral foundation that supports the Catholic Church's opposition to the death penalty is wide and deep. This Article proposes that despite the oft-repeated maxim that "death is different," the same foundation that supports efforts to abolish the death penalty can also support those who seek to achieve other reforms in the practice of criminal punishment.

The Imperfections Of The Rule Of Law, Wiiliam E. Nelson

Faculty Articles

An essay is presented on the shortcomings of the U.S rule of law as well as its precepts. Topics discussed include various aspects of the rule of law, the book "The Nature of the Judicial Process" by Justice Benjamin N. Cardozo, and the U.S District Court for the Southern District of New York's decision in case United States ex rel. Elksnis v. Gilligan that addressed the conviction of plaintiff for homicide on a guilty plea.

Romanticizing Democracy, Political Fragmentation, And The Decline Of American Government, Richard H. Pildes

Faculty Articles

This Feature was delivered originally as the 2013-14 Ralph Gregory Elliot Lecture at Yale Law School.

The Mismatch Between Twenty-First-Century Forensic Evidence And Our Antiquated Criminal Justice System, Erin E. Murphy

Faculty Articles

The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that …

The New Policing Of Business Crime, Rachel E. Barkow

Faculty Articles

The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed …

Settling International Business Disputes With China: Then And Now, Jerome A. Cohen

Faculty Articles

The article offers information on the significant history, laws and principal methods such as mediation, negotiation, arbitration, and adjudication for settling international business disputes with third parties in China under the international contract law. It analyzes the role of the Legal Department of the China Council for the Promotion of International Trade (CCPIT) and the International Chamber of Commerce in arbitration of international conflicts with foreign companies.