Digital Commons Network^™

First Principles And Practical Politics: Thoughts On Judge Pryor's Proposal To Revive Presumptive Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

In recent remarks to the American Law Institute, Judge William Pryor recommended abandonment of the post- Booker advisory version of the Federal Sentencing Guidelines and adoption of a simplified presumptive federal guidelines system. There was a time when I shared Judge Pryor's optimism that a sensible system of simplified presumptive sentencing guidelines could be enacted and could achieve its beneficent ends for a useful period thereafter. I have not yet surrendered the dream, but I confess to increased skepticism. The remainder of this essay will explain my pessimistic turn.

Incarceration To Incorporation: Economic Empowerment For Returning Citizens Through Social Impact Bonds, Etienne C. Toussaint

Faculty Publications

This Article builds upon an ongoing community economic development (CED) action research project at The George Washington Law School Small Business and Community Economic Development Clinic that explores progressive strategies to economical empower formerly incarcerated individuals as they return home from prison. Formerly incarcerated individuals in America — appropriately called “returning citizens” but more frequently labeled “ex-felons” — are shackled with the stigma of their prison record long after serving time behind bars, a stigma that impairs their civil rights and limits their prospects for economic prosperity in the job market. This Article discusses recent legislation in the District of …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices …

How We Prosecute The Police, Kate Levine

Faculty Publications

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host of undertheorized questions about how the police are treated when they become the subject of criminal prosecutions.

This Article is part of a larger project wherein I examine the ways in which criminal procedure is different for the police than other suspects. Here, my focus …

Police Suspects, Kate Levine

Faculty Publications

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated …

Conviction By Prior Impeachment, Anna Roberts

Faculty Publications

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed. (1) it relies on assumptions belied by data; (2) it has devastating impacts on individual trials; and (3) it contributes to many of the criminal justice system's most urgent dysfunctions. Yet critiques of the practice are often paired with resignation. Abolition is thought too ambitious because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and …

Developing A Risk Model To Target High-Risk Preventive Interventions For Sexual Assault Victimization Among Female U.S. Army Soldiers, Amy E. Street, Anthony J. Rosellini, Robert J. Ursano, Steven G. Heeringa, Eric D. Hill, John Monahan, James A. Naifeh, Maria V. Petukhova, Ben Y. Reis, Nancy A. Sampson, Paul D. Biese, Murray B. Stein, Alan M. Zaslavsky, Ronald C. Kessler

Faculty Publications

Sexual violence victimization is a significant problem among female U.S. military personnel. Preventive interventions for high-risk individuals might reduce prevalence but would require accurate targeting. We attempted to develop a targeting model for female Regular U.S. Army soldiers based on theoretically guided predictors abstracted from administrative data records. As administrative reports of sexual assault victimization are known to be incomplete, parallel machine learning models were developed to predict administratively recorded (in the population) and self-reported (in a representative survey) victimization. Capture–recapture methods were used to combine predictions across models. Key predictors included low status, crime involvement, and treated mental disorders. …

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Publications

This Article examines American prosecutors' approaches to uncertainty during voir dire. At different points during trial preparation and during jury selection itself-- lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors' relationships and experiences outside of the courtroom. I …

Seeking Inconsistency: Advancing Pluralism In International Criminal Sentencing, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Body-Worn Cameras: Exploring The Unintentional Consequences Of Technological Advances And Ensuring A Role For Community Consultation, Kami N. Chavis

Faculty Publications

This Essay will discuss the role police body-worn cameras can play in ensuring police legitimacy by increasing transparency, deterring police and citizen misbehavior, increasing officer professionalism, providing valuable training tools, and improving evidentiary documentation when crimes occur. This Essay will also discuss the need to view body-worn cameras and similar technologies with a healthy bit of skepticism. While body-worn cameras can have a significant impact on police accountability and public safety, local officials must carefully consider camera implementation and draft clear guidelines to balance the concerns for accountability with the privacy concerns articulated below. Therefore, this Essay seeks to identify …

Flagrant Police Abuse: Why Black Lives (Also) Matter To The Fourth Amendment, Joelle A. Moreno

Faculty Publications

No abstract provided.

Dispatches From Two Fronts Of The Battle For Sentencing Reform: Parole And Federal Sentencing Legislation, Frank O. Bowman Iii

Faculty Publications

This Issue of FSR reports on two fronts in the ongoing national battle for sentencing reform. The first half of the Issue is devoted to evolving views and new initiatives on parole. The second half of the Issue is a report on the content and prospects for success of a number of bills pending in Congress that would reform federal criminal sentencing, corrections, and back-end release practices.

Good Enough To Be Getting On With? The State Of Federal Sentencing Legislation, December 2015, Frank O. Bowman Iii

Faculty Publications

This article traces the evolution of the sentencing reform debate in Congress in 2015. It summarizes and compares the six major pieces of sentencing legislation introduced in 2015. It describes the progression from con­ceptually simple, broadly applicable reforms of mandatory minimum sentences to the regime of complex and highly restrictive rules relaxing mandatory minimum sentences for a modest subset of federal defendants found in the bills that passed the Senate and House Judiciary Committees. The article summarizes some of the concerns voiced about he sentencing provisions of the various bills. Finally, it discusses the three pending bills relating to back-end …

Combatendo A Corrupção Nos Estados Unidos, Paul Marcus

Faculty Publications

The article discusses the problematic of the fight against the corruption by the criminal justice system of the United States, mainly the white-collar crimes. It is emphasized, first, that in most of the cases does not result in trial, but in plea bargains, and, second, in many cases the encouragement from an undercover agent has served as an effective defense instrument. Finally, it is discussed the problematic of the use of information obtained from the technological devices and its probable violation to the right privacy.

This article is in Portuguese.

Locked In: Interactions With The Criminal Justice And Child Welfare Systems For Lgbtq Youth, Ymsm, And Ywsw Who Engage In Survival Sex, Meredith Dank, Lilly Yu, Jennifer Yahner, Elizabeth Pelletier, Mitchyll Mora, Brendan M. Conner

Faculty Publications

No abstract provided.

Big Data Blacklisting, Margaret Hu

Faculty Publications

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Census-Based Socioeconomic Indicators For Monitoring Injury Causes In The Usa: A Review, Nathaniel Bell, Amanda Arrington, Swann Arp Adams

Faculty Publications

BACKGROUND:

Unlike the UK or New Zealand, there is no standard set of census variables in the USA for characterising socioeconomic (SES, socioeconomic status) inequalities in health outcomes, including injury. We systematically reviewed existing US studies to identify conceptual and methodological strengths and limitations of current approaches to determine those most suitable for research and surveillance.

METHODS:

We searched seven electronic databases to identify census variables proposed in the peer-reviewed literature to monitor injury risk. Inclusion criteria were that numerator data were derived from hospital, trauma or vital statistics registries and that exposure variables included census SES constructs.

RESULTS:

From …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Criminal Careers In Cyberspace: Examining Website Failure Within Child Exploitation Networks, Bryce G. Westlake, Martin Bouchard

Faculty Publications

Publically accessible, illegal, websites represent an additional challenge for control agencies, but also an opportunity for researchers to monitor, in real time, changes in criminal careers. Using a repeated measures design, we examine evolution in the networks that form around child exploitation (CE) websites, over a period of 60 weeks, and determine which criminal career dimensions predict website failure. Network data were collected using a custom-designed web-crawler. Baseline survival rates were compared to networks surrounding (legal) sexuality and sports websites. Websites containing CE material were no more likely to fail than comparisons. Cox regression analyses suggest that increased volumes of …

Evidentiary Rulings As Police Reform, Seth W. Stoughton

Faculty Publications

How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, Stoughton contends that evidentiary considerations have the potential to change both police training and agency culture. Stoughton’s contention is based on the observation that evidentiary considerations have shaped not just police behavior but also the culture of policing …

Law Enforcement's "Warrior Problem", Seth W. Stoughton

Faculty Publications

Within law enforcement, few things are more venerated than the concept of the Warrior. Officers are trained to cultivate a “warrior mindset,” the virtues of which are extolled in books, articles, interviews, and seminars intended for a law enforcement audience. An article in Police Magazine opens with a sentence that demonstrates with notable nonchalance just how ubiquitous the concept is: “[Officers] probably hear about needing to have a warrior mindset almost daily.” Modern policing has so thoroughly assimilated the warrior mythos that, at some law enforcement agencies, it has become a point of professional pride to refer to the “police …

Maturing Justice: Integrating The Convention On The Rights Of The Child Into The Judgments And Processes Of The International Criminal Court, Linda A. Malone

Faculty Publications

No abstract provided.

A College-Level Discussion Guide To "Speaking Their Peace: Personal Stories From The Frontlines Of War And Peace" By Colette Rausch, Christie S. Warren, Meghan Phillips, Abby Riley

Faculty Publications

No abstract provided.

Small Data Surveillance V. Big Data Cybersurveillance, Margaret Hu

Faculty Publications

This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that "collect-it-all" tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals' digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the …

Body-Mounted Police Cameras: A Primer On Police Accountability Vs. Privacy, Kami Chavis Simmons

Faculty Publications

Immediately following the shooting death of Michael Brown in Ferguson, Missouri and the death of Eric Garner at the hands of a New York Police Department officer, criminal justice advocates called for greater measures to hold police officers accountable for their actions. For many observers, the failure to secure criminal indictments against the officers involved in each of these deaths of unarmed citizens suggested various shortcomings in the criminal justice system.

One of the most hotly contested reform proposals involves requiring police officers to wear body cameras. The NAACP, the ACLU, and The Lawyers' Committee for Civil Rights Under Law …

Watch & Learn: Illegal Behavior And Obedience To Legal Norms Through The Eyes Of Israeli And American Popular Culture, Itay Ravid

Faculty Publications

What do popular media tell us about the way we perceive the rule of law in our society? What conceptions of legal norms and obedience to these norms control popular mass media? How do these conceptions shape and reflect the legal culture of a given society? This paper aims to explore empirically these questions, through the analysis of American TV shows and Israeli TV shows that became popular in Israel. To achieve this goal a dual empirical strategy was adopted — content analysis of popular TV shows, and an Internet survey among Israeli respondents. This approach addresses a methodological and …

Editorial, Michael Leitner, Marco Helbich

Faculty Publications

No abstract provided.

Surviving The Streets Of New York: Experiences Of Lgbtq Youth, Ymsm, And Ywsw Engaged In Survival Sex, Meredith Dank, Jennifer Yahner, Kuniko Madden, Isela Bañuelos, Lilly Yu, Andrea Ritchie, Mitchyll Mora, Brendan M. Conner

Faculty Publications

No abstract provided.