Digital Commons Network^™

A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Some have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners …

Redesigning Sentencing, W. David Ball

Faculty Publications

Design thinking purports to take the methods of industrial and product design and apply them to social and political problems. One particularly intractable problem in California is its bloated penal code, which has expanded almost continuously over the past forty years. Since 1983, more than a dozen bills have been introduced in the CaliforniaLegislature to establish a sentencing commission. All have failed. In this paper I explore how design thinking might help frame our discussion of mass incarceration in general and sentencing commissions in particular:what kinds of changes are possible within the foreseeable future, how wecan make any changes sustainable, …

Material Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases, Kathleen M. Ridolfi, Tiffany M. Joslyn, Todd H. Fries

Faculty Publications

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. Critical to the accused is the guarantee of fair process. For the accused, fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material.This guarantee, however, is frequently unmet.In courtrooms across the nation, accused persons are convicted without ever …

The Incidental Regulation Of Policing, Seth W. Stoughton

Faculty Publications

What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and under-appreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing.

This Article explores the incidental regulation of policing, illustrating the concept with examples from different areas of state and federal law. Many legal decisions happen to include police as constituents of a broader regulatory ambit, and thus are not intended to have any particular effect on the unique functions of policing. Nevertheless, these laws have profound ramifications for police …

The Constitutional Limit Of Zero Tolerance In Schools, Derek W. Black

Faculty Publications

With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application …

The Legacy Of Stop And Frisk: Addressing The Vestiges Of A Violent Police Culture, Kami Chavis Simmons

Faculty Publications

For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed.

While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. …

Rural Incentive Programs For Legal And Medical Professionals: A Comparative, Hannah Haksgaard

Faculty Publications

No abstract provided.

Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess

Faculty Publications

South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …

Dislocation And Relocation: Women In The Federal Prison System And Repurposing Fci Danbury For Men, Anna Arons, Katherine Culver, Emma Kaufman, Jennifer Yun, Hope Metcalf, Megan Quattlebaum, Judith Resnik

Faculty Publications

(Excerpt)

This Report tracks the lack of progress in keeping federal prison space in the Northeast available for women and the impact of the absence of bed-spaces for women on the implementation of federal policies committed to reducing over-incarceration. The problems began in the summer of 2013, when the federal Bureau of Prisons (BOP) announced plans to transform its only prison for women in the Northeast—FCI Danbury—into a facility for men. The BOP explained that this self-described “mission change” was a response to the need to provide more low-security beds for male prisoners.

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Publications

This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. In admitting convictions as impeachment evidence, courts are wrongly assuming that such convictions are necessarily reliable indicators of relative culpability. Courts assume that convictions are the product of a fair fight, that they demonstrate relative culpability, and that they connote moral culpability. But current prosecutorial practice and other data undermine each of these assumptions. Accordingly, this Article proposes that before a conviction is used for impeachment, there should be an assessment of the extent to …

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malavé

Faculty Publications

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …

Using Internet Artifacts To Profile A Child Pornography Suspect, Kathryn C. Seigfried-Spellar, Marcus K. Rogers

Faculty Publications

Digital evidence plays a crucial role in child pornography investigations. However, in the following case study, the authors argue that the behavioral analysis or “profiling” of digital evidence can also play a vital role in child pornography investigations. The following case study assessed the Internet Browsing History (Internet Explorer Bookmarks, Mozilla Bookmarks, and Mozilla History) from a suspected child pornography user’s computer. The suspect in this case claimed to be conducting an ad hoc law enforcement investigation. After the URLs were classified (Neutral; Adult Porn; Child Porn; Adult Dating sites; Pictures from Social Networking Profiles; Chat Sessions; Bestiality; Data Cleaning; …

The Year Of Magical Thinking: Fraud, Loss, And Grief, Jayne W. Barnard

Faculty Publications

In The Year of Magical Thinking, her wrenching memoir of the year following the death of her husband John Gregory Dunne, Joan Didion describes the episodes of magical thinking that forestalled her acceptance of Dunne's sudden absence from her life. In the hours after his death, she charged his cell phone. Weeks later, she gave his clothes to charity but kept his shoes because, she thought, "He would need shoes if he were to return."

Modern grief theory tells us that episodes like these are common during the months following a loved one's death, particularly when the death, like …

Jailing Black Babies, James G. Dwyer

Faculty Publications

No abstract provided.

The Coming Crisis In Law Enforcement And How Federal Intervention Could Promote Police Accountability In A Post-Ferguson United States, Kami Chavis Simmons

Faculty Publications

The proliferation of aggressive, and sometimes militarized, police tactics represents the "coming crisis" in law enforcement, although many residents of [inner city] communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities.

This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional …

A Theory Of Civil Liability, Nathan B. Oman

Faculty Publications

No abstract provided.

Remaking Mexico: Law Reform As Public Policy, Deborah M. Weissman

Faculty Publications

No abstract provided.

The Politics Of Pretext: Vawa Goes Global, Deborah M. Weissman

Faculty Publications

No abstract provided.

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states …

Issues Raised By Studying Defond And Zhang: What Should Audit Researchers Do?, John Donovan

Faculty Publications

We view audit-quality choice as one among many that managers make to maximize firm value. We question whether audit-quality differences among publicly traded companies are of significant interest to investors, clients, and auditors and ask for research on this topic.  Relatedly, we ask for research on whether auditors and their clients show behavior consistent with regulated audit quality exceeding the audit quality level demanded absent regulation. We propose that researchers incorporate the competitive advantages of auditors and the institutional features of the audit process into the definition of audit quality. We propose that audit quality research test for externalities and …

Hcv Among Male Injection Drug Users And Their Female Partners In Almaty, Kazakhstan: Implications For Hcv Treatment And Prevention, Nabila El-Bassel, Louisa Gilbert, Chris Beyrer, Assel Terlikbayeva, Elwin Wu, Xin Ma, Mingway Chang, Stacey Shaw, Baurzhan Zhussupov, Tim Hunt, Sholpan Primbetova, Yelena Rozental

Faculty Publications

HCV infection is a serious concern among people who inject drugs. Despite imposing a major disease burden in countries with high rates of injection drug use such as Kazakhstan, other Central Asian and East Asian countries, Eastern Europe, and Russia, HCV remains an understudied issue. This study includes 728 individuals (364 couples) from Almaty, Kazakhstan, where at least one member of the dyad reported recent injection drug use. Participants were recruited to participate in a couple-based HIV prevention study. We examine the prevalence of HCV and co-infections between HCV and HIV, correlates of HCV, and the association between HCV prevalence …

Capital Defenders As Outsider Lawyers, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Opt-Out Education: School Choice As Racial Subordination, Osamudia James

Faculty Publications

No abstract provided.

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.

Emergency Department Utilization Among Recently Released Prisoners: A Retrospective Cohort Study, Suyanpeng Zhang, Allie Silverman, Sze Chaun Suen, Christina Andrews, Brian Chen

Faculty Publications

Background: The population of ex-prisoners returning to their communities is large. Morbidity and mortality is increased during the period following release. Understanding utilization of emergency services by this population may inform interventions to reduce adverse outcomes. We examined Emergency Department utilization among a cohort of recently released prisoners.

Methods: We linked Rhode Island Department of Corrections records with electronic health record data from a large hospital system from 2007 to 2009 to analyze emergency department utilization for mental health disorders, substance use disorders and ambulatory care sensitive conditions by ex-prisoners in the year after release from prison in comparison to …

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Biometric Id Cybersurveillance, Margaret Hu

Faculty Publications

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Mental Health, Substance Use, And Delinquency Among Truant Youth In A Brief Intervention Project: A Longitudinal Study, Richard Dembo, Rhissa Briones-Robinson, Kimberly Barrett, Ken C. Winters, James Schmeidler, Rocío Aracelis Ungaro, Lora Karas, Steven Belenko, Laura Gulledge

Faculty Publications

The relationship between substance use, mental health disorders, and delinquency among youth is well documented. What has received far less attention from researchers is the relationship between these issues among truant youth, in spite of studies that document truants are a population at risk for negative outcomes. This study bridges this gap by (a) examining psychosocial functioning and delinquency among truants and (b) assessing the efficacy of a brief intervention (BI) in reducing delinquent behavior over time. To meet these objectives, data were collected from 183 truant youth enrolled in an ongoing National Institute on Drug Abuse (NIDA)-funded BI project. …

Jury Nullification And The Rule Of Law, Brenner M. Fissell

Faculty Publications

Despite an intractable judiciary, there is widespread consensus within the legal academy that jury nullification is compatible with the rule of law. This proposition is most strongly tested by “substantive nullifications,” where a jury nullifies simply because it disagrees with the law itself. While some substantive nullifications can comport with the rule of law, most commentators’ wholesale acceptance of the practice is not justified. They err by ignoring the nonsubstantive, procedural nature of the rule of law in favor of one determined by substantive “justice,” and also by taking a naıvely undifferentiated view of a “community’s” morality (even though jurisdictional …