Digital Commons Network^™

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.”

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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 …

Association Of National Football League Fan Attendance With County-Level Covid-19 Incidence In The 2020-2021 Season, Justin Kurland, Wanda E. Leal, Erin M. Sorrell

Faculty Publications

Importance The 2020-2021 National Football League (NFL) season had some games with fans and others without. Thus, the exposed group (ie, games with fans) and the unexposed group (games without fans) could be examined to better understand the association between fan attendance and local incidence of COVID-19.

Objective To assess whether NFL football games with varying degrees of in-person attendance were associated with increased COVID-19 cases in the counties where the games were held, as well as in contiguous counties, compared with games without in-person attendance for 7-, 14-, and 21-day follow-ups.

Design, Setting, and Participants This cross-sectional study used …

Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams

Faculty Publications

The article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”

Dating App Facilitated Sexual Assault: A Retrospective Review Of Sexual Assault Medical Forensic Examination Charts, Julie L. Valentine, Leslie W. Miles, Kristen Mella Hamblin, Aubrey Worthen Gibbons

Faculty Publications

Dating app facilitated sexual assault (DAppSA) is a concerning phenomenon with minimal published research. This retrospective study explored if DAppSAs were different than other sexual assaults (SAs) committed by acquaintances through a review of 3,413 sexual assault medical forensic examination (SAMFE) charts from 2017 to 2020 in a Mountain West state in the United States. Routine Activities Theory and Confluence Model of sexual aggression provided the theoretical framework for the study. Inclusion criteria for DAppSA cases included (1) victim was 14 years of age or older; (2) victim indicated meeting the perpetrator on a dating app; (3) SA occurred at …

With Great Power Comes Great Responsibility: Superheroes & The Law, Thomas Simmons, Chris Dellicarpini, Rick Collins

Faculty Publications

Legal issues and lessons abound in superhero narratives. Caped heroes often act above and outside the law but deliver on law’s promises of justice and mercy in ways that ordinary legal actors cannot. Legal ethics, criminal law, and procedure are all on display. Superheroes supply a framework for examination of multiple legal issues and lessons, including what it means to be ethical (within the context of the rules of professional conduct and also in a broader sense) and how a legal life can be a virtuous one.

Differences In Suicidality In Non–Treatment-Seeking And Treatment-Seeking Law Enforcement Officers: A Cross-Sectional Study, Warren N. Ponder, Alaina M. Beauchamp, Donna L. Schuman, Jose Carbajal, Katelyn K. Jetelina, Jeanine M. Galusha

Faculty Publications

Objective: Law enforcement officers (LEOs) are exposed to high levels of occupational trauma and face added stress from heightened public scrutiny and COVID-19, which may result in suicide. It is crucial to understand differences between LEOs who seek treatment and those who do not. Method: We compared LEOs from the same greater metropolitan area who sought treatment with those who did not. Participants completed validated measures assessing posttraumatic stress disorder, generalized anxiety, depression, and suicidality. Results: The treatment-seeking sample scores were higher on all standardized assessments. Bivariate logistic regression results indicated that the non–treatment-seeking sample's odds of experiencing suicidality were …

Parental Genetic Contributions To Neonatal Temperament In A Nonhuman Primate (Macaca Mulatta) Model, Elizabeth K. Wood, Jacob N. Hunter, Joseph A. Olsen, Laura Almasay, Stephen G. Lindell, David Goldman, Christina S. Barr, Stephen J. Suomi, Daniel B. Kay, James Dee Higley

Faculty Publications

Temperament is an individual’s nature and is widely believed to have a heritable foundation. Few studies, however, have evaluated paternal and maternal contributions to the triadic dimensions of temperament. Rhesus monkeys are widely utilized to model genetic contributions to human development due to their close genetic-relatedness and common temperament structure, providing a powerful translational model for investigating paternal and maternal genetic influences on temperament. The temperament of rhesus monkey infants born to 19 different sires and 50 different dams was assessed during the first month of life by comparing the temperament of paternal or maternal half-siblings reared with their mothers …

Rectifying Wrongful Convictions Through The Dormant Grand Jury Clause, Colin Miller

Faculty Publications

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. …

Biometrics And An Ai Bill Of Rights, Margaret Hu

Faculty Publications

This Article contends that an informed discussion on an AI Bill of Rights requires grappling with biometric data collection and its integration into emerging AI systems. Biometric AI systems serve a wide range of governmental purposes, including policing, border security and immigration enforcement, and biometric cyberintelligence and biometric-enabled warfare. These systems are increasingly categorized as "high-risk" when deployed in ways that may impact fundamental constitutional rights and human rights. There is growing recognition that high-risk biometric AI systems, such as facial recognition identification, can pose unprecedented challenges to criminal procedure rights. This Article concludes that a failure to recognize these …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Institutional Betrayals As Sex Discrimination, Emily Suski

Faculty Publications

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe …

Unidentified Police Officials, Teressa Ravenell

Faculty Publications

.United States police officers arrest more than ten million people each year. All of these arrests involve some level of force, and many of them involve multiple officers. Victims of excessive force may bring a § 1983 civil rights claim against all of the officers who were present, but too often plaintiffs with meritorious cases lose because they cannot prove causation. It is not enough to show that “the police” violated the constitution; rather, to prevail against a defendant a § 1983 plaintiff must show how that specific defendant “subjected or caused the plaintiff to be subjected” to the deprivation …

The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller

Faculty Publications

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled …

Ten Simple Rules To Ruin A Collaborative Environment, Carolyn J. Lawrence-Dill, Robyn L. Allscheid, Albert Boaitey, Todd Bauman, Edward S. Buckler, Jennifer L. Clarke, Christopher Cullis, Jack Dekkers, Cassandra J. Dorius, Shawn F. Dorius, David Ertl, Matthew Homann, Guiping Hu, Mary Losch, Eric Lyons, Brenda Murdoch, Zahra Katy Navabi, Somashekhar Punnuri, Fahad Rafiq, James M. Reecy, Patrick S. Schnable, Nicole M. Scott, Moira Sheehan, Xavier Sirault, Margaret Staton, Christopher K. Tuggle, Alison Van Eenennaam, Rachael Voas

Faculty Publications

Trigger warning: Here, you will find a bit of satire, written from the not-so-funny, real experiences of the authors who have been involved in “team science” collaboratives. The material presented below covers topics that readers may find offensive or even traumatizing. We present a breakdown (pun intended) of how to ruin a functioning collaboration, rather than how to build one.

The ideas contained in this work were developed during two virtual meetings of members of the Agricultural Genome to Phenome Initiative (AG2PI; www.ag2pi.org) community and leadership team in May and June of 2021. In these sessions, we looked back …

Making The Best From A Mess: Mental Health, Misconduct, And The "Insanity Defense" In The Va Disability Compensation System, Caleb R. Stone

Faculty Publications

The disability compensation system implemented by the Department of Veterans Affairs ("VA") is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is "honorable" for VA purposes. For some former servicemembers seeking benefits, using the VA's "insanity defense" to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only "defense" that allows …

Against Criminal Law Localism, Brenner M. Fissell

Faculty Publications

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints. In making these claims, localists have at times either explicitly included control over substantive criminal law in their devolutionary project, or have overlooked that more general calls for localism would presumably include this power.

This Article critiques substantive criminal law localism, arguing that …

Estimating The Earnings Loss Associated With A Criminal Record And Suspended Driver’S License, Colleen Chien, Alexandra George, Srihari Shekhar, Robert Apel

Faculty Publications

No abstract provided.

The Perfect Storm: Substance Abuse, Mental Illness, And Rural America, Bailey D. Barnes

Faculty Publications

Across the United States in the late twentieth and early twenty-first century, substance abuse and mental illness have clashed with the criminal justice system to produce inequitable and tragic results. The War on Drugs especially affects rural communities, where resources for rehabilitative services, mental health treatment, and transitional housing are scarce. In these areas, the significant strain on the criminal justice system caused by the frequent intersection of substance abuse and mental illness has wrought overcrowded correctional facilities, congested criminal court dockets, exhausted public defenders, and devastated families. This Article is a case study of one such rural community's experience …

Progressive Algorithms, Itay Ravid, Amit Haim

Faculty Publications

Our criminal justice system is broken. Problems of mass incarceration, racial disparities, and susceptibility to error are prevalent in all phases of the criminal process. Recently, two dominant trends that aspire to tackle these fundamental problems have emerged in the criminal justice system: progressive prosecution—a model of prosecution adopted by elected reform-minded prosecutors that advance systemic change in criminal justice—and algorithmic decision-making—characterized by the adoption of statistical modeling and computational methodology to predict outcomes in criminal contexts.

Social Determinants Of Health And Depression Among African American Adults: A Scoping Review Of Current Research, Brooks Yelton, Daniela B. Friedman, Samuel Noblet, Matthew C. Lohman, Mark M. Macauda, Mayank Sakhuja, Katherine H. Leith

Faculty Publications

Depression in the United States (US) is increasing across all races and ethnicities and is attributed to multiple social determinants of health (SDOH). For members of historically marginalized races and ethnicities, depression is often underreported and undertreated, and can present as more severe. Limited research explores multiple SDOH and depression among African American adults in the US. Guided by Healthy People (HP) 2030, and using cross-disciplinary mental health terminology, we conducted a comprehensive search to capture studies specific to African American adults in the US published after 2016. We applied known scoping review methodology and followed Preferred Reporting Items for …

Congregation Shopping During The Pandemic: A Research Note, Paul Djupe

Faculty Publications

No abstract provided.

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Fake It Until You Make It!: The Crimes And Trial Of Anna Sorokin (Delvey), Angelo Kevin Brown

Faculty Publications

The chapter will provide an overview of the life, crimes, and trial of Anna Sorokin better known as Anna Delvey. Anna had invented a false persona and life so that people would think she was a rich German heiress instead of her real identity of a woman from a working-class Russian family. Anna used her false identity to defraud banks, hotels, and friends for about $275,000. Anna's life became internationally known with her story being published in major news and media articles including podcasts, 60 Minutes, HBO, a $300,000 book deal to her former friend Rachel Williams, and a $320,000 …

The Havoc Death Wreaks: Civil Rights Challenges To Capital Punishment, Bailey D. Barnes

Faculty Publications

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty …

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Faculty Publications

No abstract provided.

Discursive Incarceration: Black Fragility In A Divided Public Sphere, Meili Steele

Faculty Publications

The expression of fragility has always been a difficult and complex matter for African Americans, for the discourse of mainstream media is set up to both sustain and misrecognize their fragility . Even though the black public sphere split off from the dominant public sphere after the Civil War to enable distinctive forms of expression, the “practiced habits” of which Coates speaks continued working within the structures of the dominant discourse. My essay will analyze the structure of America’s indifference to fragility in six parts. In the first section, I will introduce a normative problematic that can track how the …

Inconceivability, Horror, And The Mercy Seat, Thomas Simmons

Faculty Publications

In an ordinary home in Huron, South Dakota-sometime in the very early morning hours of Sunday, April 5, 1987-a young girl was murdered in her crib. By March of the next year, her mother, Debra Jenner, had been convicted of second-degree murder. She was sentenced to life in prison. Although she became eligible for parole in 2003 after Governor Janklow commuted her sentence, her applications for discretionary parole were consistently denied. She remained incarcerated until last year, when she was finally granted parole. This essay embarks on a retelling of Debra Jenner's trial, her subsequent post-conviction proceedings, and her numerous …

Book Review: A Civility-Based Model For New Lawyers: Understanding Your Moral Compass, Interpersonal Skills, And Ethical Inventory Before Practicing Law, Sarah Kammer

Faculty Publications

No abstract provided.

Reflections On Teaching Constitutional Law In The Midst Of A Constitutional Crisis, Sean Kammer

Faculty Publications

No abstract provided.