Digital Commons Network^™

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

Faculty Publications

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …

The Right To A Jury And The Rise Of Guilty Pleas Across Common Law Countries, Carissa Byrne Hessick

Faculty Publications

Juries have long been considered a key common law institution, yet their use has become quite uncommon in common law systems over time. Rather than trials by juries, most criminal cases are instead resolved by way of guilty pleas. The prevalence of guilty pleas is not merely a matter of defendants’ independent choices to accept responsibility and give up the right to a trial. Common law countries have adopted various legal structures over the past half century that incentivize guilty pleas and discourage trials.

This Essay will document the decline of jury trials and the rise of guilty pleas in …

Equality And Justice: An Essay In Memory Of Dan Markel, Carissa Byrne Hessick

Faculty Publications

One of the traits that I admired most about Dan Markel was that he held legal scholarship to a very high standard. Whether it was his own work or the work of others, he believed that our work could only improve if we insisted on giving each other critical feedback.

It has been a decade since Dan’s tragic death. And while a Festschrift is ordinarily seen as an opportunity to praise the work of one’s colleagues, I want to celebrate Dan Markel in the way that I imagine he would respect most—by providing critical feedback about his work. In particular, …

Sealed Justice: Federal Courts' Inconsistent Record-Sealing Rules And Their Impact On Judicial Transparency, David S. Ardia

Faculty Publications

Public access to court records is a cornerstone of democratic governance, enabling public oversight of the judiciary and fostering confidence in the rule of law. Despite a strong presumption in favor of openness under both the First Amendment and common law, the sealing of federal court records has become widespread, often with minimal judicial scrutiny. Re-cent investigations have revealed that excessive court secrecy shields government and corporate misconduct, conceals vital public-safety information, and erodes public confidence in the courts.

This Article presents the first comprehensive analysis of the local rules governing sealing in all 94 federal districts, reviewing more than …

Sexual Orientation, Gender Identity And Virologic Failure Among People With Hiv: A Cohort Study In All Of Us Research Program, Fanghui Shi, Ruilie Cai, Buwei He, Xiaoming Li Ph.D., Xueying Yang Ph.D., Sharon Weissman, Bankole Olatosi Ph.D., Jiajia Zhang Ph.D.

Faculty Publications

Background: Sexual and gender minorities (SGMs) are at higher risk of HIV incidence compared to their heterosexual cisgender counterparts. Despite the high HIV disease burden among SGMs, there was limited data on whether they are at higher risk of virologic failure, which may lead to potential disease progression and increased transmission risk. The All of Us (AoU) Research Program, a national community-engaged program aiming to improve health and facilitate health equity in the United States by partnering with one million participants, provides a promising resource for identifying a diverse and large volunteer TGD cohort. Leveraging various data sources available through …

Redressing Judicial Misbehavior: An Integrated Approach To Judicial Immunity, Nancy Amoury Combs

Faculty Publications

Immunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

State Divorce Laws, Reproductive Care Policies, And Pregnancy-Associated Homicide Rates, 2018-2021, Kaitlin M. Boyle, Wendy Regoeczi, Chase B. Meyer

Faculty Publications

Importance: Barriers to divorce and reproductive health care can threaten the health and safety of pregnant and recently pregnant females.

Objective: To examine state laws about divorce, reproductive health care (access to contraception, family planning services, and abortion), and pregnancy-associated homicide rates in US states over a 4-year period (2018-2021).

Design, Setting, and Participants: In this cross-sectional study, bivariate tests and regressions were used to analyze crude rates of pregnancy-associated homicide from the National Violent Death Reporting System in 181 state-years for calendar years 2018 to 2021, with analyses conducted on September 8, 2024.

Exposures: Access to divorce while pregnant …

The Roles Of Vicarious Trauma Exposure And Perceived Social Support In Codeine Syrup Misuse Among Black Men Living In Prisons, Jardin Dogan-Dixon, Shawndaya S. Thrasher, Shemeka Thorpe, Paris Wheeler, Danelle Stevens-Watkins

Faculty Publications

Using General Strain Theory, this study investigates the effects of vicarious trauma exposure and perceived social support on nonmedical codeine syrup misuse among Black incarcerated men nearing community re-entry. Data were drawn from the Helping Incarcerated Men project, a study examining mental health, substance misuse, and human immunodeficiency virus (HIV) risk behaviors among Black men living in prisons who were within 180 days of release. A total of 200 Black men self-reported demographics (i.e., age and length of incarceration after age 18), vicarious trauma exposure (e.g., ever witnessing an assault with a weapon and a sudden accidental death), perceived social …

Cultural Predictors Of Self-Esteem Among Black Women With Criminal Justice Involvement And Herpes Simplex Virus, Natalie Malone, Jardin N. Dogan-Dixon, Shemeka Thorpe, Shawndaya S. Thrasher, Paris Wheeler, Danelle Stevens-Watkins, Carrie B. Oser

Faculty Publications

Black women have disproportionately alarming HSV-2 infection rates yet receive little attention in sexual health literature. Using a strengths-based resilience framework, this study sought to determine culturally relevant protective predictors of self-esteem for Black women who are justice-involved and have HSV-2. The authors conducted secondary data analysis on data from the “Black Women in the Study of Epidemics (B-WISE) Project,” a longitudinal prospective study investigating health disparities and health services utilization among Black women with justice involvement. At baseline, N = 151 Black women with HSV-2 who were incarcerated or on probation completed survey measures assessing self-esteem, ethnic identity affirmation …

Law Enforcement Agency Practices And Policies For The Investigation Of Child Sex Trafficking: Are Agencies Using Victim-Centered Approaches?, Kimberly J. Mitchell, Jennifer E. O'Brien, Lisa M. Jones, Alli Puchlopek-Adams

Faculty Publications

Over the past decade, efforts have been made to reform the way in which law enforcement responds to child sex trafficking (CST). Law enforcement agencies are being urged or required to use victim-centered approaches that provide exploited youth with support and services. However, researchers have yet to empirically examine law enforcement’s recognition of CST at the agency-level, their arrest practices, or the services that are being offered to CST victims. We have little information about the utilization and effectiveness of various law enforcement agency policies, practices and training programs related to CST. The National Law Enforcement Agency Child Sex Trafficking …

Law And Literature Studies As A Basis For High-Quality Ethics Cle Programs, David S. Caudill

Faculty Publications

No abstract provided.

Intimate Partner Violence: Access To Protection Beyond The Pandemic, Rachel J. Wechsler

Faculty Publications

Civil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (IPV). They are more empowering for victims than the criminal legal system because victims themselves drive the process, instead of prosecutors, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil …

Too Sensitive Or Not Sensitive Enough? Sensitivity To Context And Justice-Involved Youths' Response To Violence Exposure, Colleen Sbeglia, Curtis Donovyn Smith, Paul J. Frick, Laurence Steinberg, Elizabeth Cauffman

Faculty Publications

With high rates of violence exposure among justice-involved youth, it is critical to identify factors that might impact the likelihood of youth engaging in violence themselves. One such factor is sensitivity to context, which describes how sensitive youth are to experiences in their environment. Using an ethnically diverse sample of justice-involved male adolescents (47% Latino, 38% Black/African American, 15% White) aged 13-17 at the time of their first arrest, the results of this study indicate that exposure to violence was related to increased violent behavior six months later, and this effect was strongest among youth who were low in sensitivity …

Understanding The Retrospective And Current Health Care Needs And Service Experiences Of Adult Survivors Of Minor Sex Trafficking, Amelia Wagner, Sarah Lockwood, Amy Farrell, Carlos Cuevas, Jennifer E. O'Brien, Rebecca Pfeffer, Jaclyn Kolnik, Alisa Lincoln

Faculty Publications

Minor sex trafficking is an urgent public health problem, but we lack data about how such experiences impact health and health care access. Utilizing data collected from in-depth interviews with 35 adult survivors of minor sex trafficking across the U.S. we explored the physical and psychological healthcare access and healthcare experiences of adult survivors of minor sex trafficking. Negative healthcare experiences before, during, and following sex trafficking foster a lack of trust and confidence in healthcare systems as adults. Recommendations are provided to help overcome barriers to meeting healthcare needs and improving health care experiences for survivors of minor sex …

Understanding The Retrospective And Current Health Care Needs And Service Experiences Of Adult Survivors Of Minor Sex Trafficking, Amelia Wagner, Sarah Lockwood, Amy Farrell, Carlos Cuevas, Jennifer E. O'Brien, Rebecca Pfeffer, Jaclyn Kolnik, Alisa Lincoln

Faculty Publications

Minor sex trafficking is an urgent public health problem, but we lack data about how such experiences impact health and health care access. Utilizing data collected from in-depth interviews with 35 adult survivors of minor sex trafficking across the U.S. we explored the physical and psychological healthcare access and healthcare experiences of adult survivors of minor sex trafficking. Negative healthcare experiences before, during, and following sex trafficking foster a lack of trust and confidence in healthcare systems as adults. Recommendations are provided to help overcome barriers to meeting healthcare needs and improving health care experiences for survivors of minor sex …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Squeezing Blood From Stones? A Comparative Analysis Of Tax Relief For Victim-Survivors In Australia And The United States, Christine Speidel, Leslie Book, Ann Kayis-Kumar

Faculty Publications

Women who leave abusive relationships generally do so with increased debt, reduced assets, insecure housing and longer-term economic insecurity. Most of these women will be experiencing economic abuse even after the relationship has ended, and many cite financial instability as a key factor driving them back into abusive relationships. So, it is imperative that the tax and transfer system helps rather than hinders (albeit inadvertently) this cohort of financially vulnerable taxpayers. However, this is not always the case, with victim-survivors of economic abuse often liable for tax debts incurred by former partners operating businesses in the victim-survivor's name.

This article …

Police-Made Law, Brenner M. Fissell

Faculty Publications

This Article presents evidence that police are writing laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed …

Mapping A Way Forward: Affordability And Equitability, 2024 Annual Health Law & Policy Symposium, Deborah Fournier

Faculty Publications

No abstract provided.

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

"I Am Become Death, The Destroyer Of Worlds": Applying Strict Liability To Artificial Intelligence As An Abnormally Dangerous Activity, Renee Henson

Faculty Publications

Artificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally …

Holding Aggressors Responsible For International Crimes: Implementing The Unequal Enforcement Doctrine, Nancy Amoury Combs

Faculty Publications

It is a fundamental tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party such as Russia — that illegally launches a war — benefits from all the same rights as a party such as Ukraine — that is forced to defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible because defenders should have more rights and fewer responsibilities than aggressors. Legal scholars continue to support the equal application doctrine, however, because they reasonably fear that applying different rules to …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Publications

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Study Protocol: Identifying Transcriptional Regulatory Alterations Of Chronic Effects Of Blast And Disturbed Sleep In United States Veterans, Molly J. Sullan, Kelly A. Stearns-Yoder, Zhaoyu Wang, Andrew J. Hoisington, Adam D. Brenoweth, Walter Carr, Yongchao Ge, Hanga Galfalvy, Fatemah Haghighi, Lisa A. Brenner

Faculty Publications

Injury related to blast exposure dramatically rose during post-911 era military conflicts in Iraq and Afghanistan. Mild traumatic brain injury (mTBI) is among the most common injuries following blast, an exposure that may not result in a definitive physiologic marker (e.g., loss of consciousness). Recent research suggests that exposure to low level blasts and, more specifically repetitive blast exposure (RBE), which may be subconcussive in nature, may also impact long term physiologic and psychological outcomes, though findings have been mixed. For military personnel, blast-related injuries often occur in chaotic settings (e.g., combat), which create challenges in the immediate assessment of …

Gendered Perceptions And Socio-Economic And Spatial Determinants Of Fear Of Crime: An Empirical Analysis In Szczecin, Poland, Natalia Sypion, Arkadiusz Kołodziej, Michael Leitner, Marek Dutkowski

Faculty Publications

The study of the fear of crime phenomenon provides a socially and politically important research question. Many studies show that gender differentiates the fear of crime, which is why we examine this phenomenon in a spatial perspective. The female versus male perspective of feelings of safety in residential areas were significantly different. The research was carried out using the CAWI technique in the city of Szczecin, in Poland (n=346). The research also examined which factors influenced the fear of crime the most: darkness, socio-economic characteristics, type of violations, number of registered crimes, or the assessment of police work. The research …

Impaired, In Pairs, Cristina Carmody Tilley

Faculty Publications

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional …

Sexual Orientation And Gender Identity Measures And Viral Suppression For People Living With Hiv: A Protocol For A Population-Based Cohort Study, Xueying Yang, Bankole Olatosi Ph.D., Sharon Weissman, Xiaoming Li Ph.D., Jiajia Zhang Ph.D.

Faculty Publications

Introduction The measure of sexual orientation and gender identity (SOGI) data in electronic health records (EHR) has been critical for addressing health disparities and inequalities, especially for HIV care. Given that gender and sexual minorities (eg, transgender, men who have sex with men and intersex) are key groups in people living with HIV (PLWH), SOGI data can facilitate a more accurate understanding about the HIV outcomes (eg, viral suppression) among this key group and then lead to tailored therapeutic services. The two-step SOGI collection method as an emerging gender measurement can be used to measure SOGI status in medical settings. …

Racialized Early Grade (Mis)Behavior: The Links Between Same-Race/Ethnicity Teachers And Discipline In Elementary School, Nayoung Hwang, Patrick Graff, Mark Berends

Faculty Publications

Studies persistently show disparities in exclusionary discipline across racial/ethnic groups in U.S. schools. Using administrative data from kindergarteners through fifth graders in Indiana, we examine the effects of student-teacher race/ethnicity matching on disciplinary outcomes. We find that Black students exhibit lower rates of suspension and expulsion when they study with Black teachers—driven mainly by fewer defiance and profanity offenses. By contrast, for Latinx and White students, having a teacher of the same race/ethnicity is not associated with suspension and expulsion. In light of the shortage of Black teachers in the teacher workforce, our findings underscore the vulnerability of Black students …

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael M. O'Hear

Faculty Publications

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …