Digital Commons Network^™

"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.

This Article delineates the various contexts in which slack arises and …

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

Pointing Guns, Joseph Blocher, Samuel W. Buell, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as …

Punishing With Impunity: The Legacy Of Risk Classification Assessment In Immigration Detention, Robert Koulish, Kate Evans

Faculty Scholarship

In 2012, the Department of Homeland Security adopted a risk classification assessment ("RCA") tool to run on migrants in the custody of Immigration and Customs Enforcement ("ICE"). The risk tool helped determine who was detained and who was released from ICE custody. It was intended to curb detention rates by limiting detention based on risk of flight and danger and to ensure that the conditions of civil immigration detention were distinct from those in criminal detention. This Article presents data from several RCA datasets received pursuant to the Freedom of Information Act.

The story of the RCA is one of …

Crime And The Mythology Of Police, Shima Baradaran Baughman

Faculty Scholarship

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating …

A Guide For Certifying Agencies: Mgl 258f Certification For Victims Of Violent Crime And Human Trafficking, Alexandra Bonazoli, Julie A. Dahlstrom, Emily Leung, Sarah Leidel, Jennifer Ollington, Ashleigh Pelto, Jamie Sabino

Faculty Scholarship

This guide provides information to certifying agencies about the new law, M.G.L. 258F Certification for Victims of Violent Crime and Human Trafficking, which went into effect on July 1, 2021. The law provides victims of violent crime and human trafficking equal access to justice throughout the Commonwealth and establishes transparent and consistent processes for victims seeking certifications from law enforcement agencies.

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

A Code Of Ethics For Gene Drive Research, George J. Annas, Chase L. Beisel, Kendell Clement, Andrea Crisanti, Stacy Francis, Marco Galardini, Roberto Galizi, Julian Grunewald, Greta Immobile, Ahmad S. Khalil, Ruth Muller, Vikram Pattanayak, Karl Petri, Ligi Paul, Luca Pinello, Alekos Simoni, Chrysanthi Taxiarchi, J. Keith Joung

Faculty Scholarship

Gene drives hold promise for use in controlling insect vectors of diseases, agricultural pests, and for conservation of ecosystems against invasive species. At the same time, this technology comes with potential risks that include unknown downstream effects on entire ecosystems as well as the accidental or nefarious spread of organisms that carry the gene drive machinery. A code of ethics can be a useful tool for all parties involved in the development and regulation of gene drives and can be used to help ensure that a balanced analysis of risks, benefits, and values is taken into consideration in the interest …

Othering Across Borders, Steven Arrigg Koh

Faculty Scholarship

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Litigation As Education: The Role Of Public Health To Prevent Weaponizing Second Amendment Rights, Michael Ulrich

Faculty Scholarship

Tobacco litigation was unquestionably successful, but it is dangerous to expect that it can be easily duplicated. An unrealistic reliance on litigation as a regulatory measure can blind public health advocates to other mechanisms of change. And that includes litigation as a means of enabling actual regulation. Firearms and the gun violence epidemic provides a useful case study. The Protection of Lawful Commerce in Arms Act (PLCAA) essentially bars litigation as a regulatory tool for firearms. This legislation means every time someone pulls the trigger, they become the party to blame. Soto v. Bushmaster Firearms presents a rare exception based …

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Faculty Scholarship

Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …

Labor Redemption In Work Law, Andrew Elmore

Faculty Scholarship

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks

This Article challenges this standard account by shifting focus to the state in imposing …

The New York Times Interviews Joshua Kastenberg On Election Day And Deployment Of The National Guard, Joshua Kastenberg, Dave Phillips

Faculty Scholarship

Federal troops have not been used to guard against election violence since the years after the Civil War when the Army was stationed across the South to put down the Ku Klux Klan and protect Black voters, said Joshua Kastenberg, a retired Air Force lieutenant colonel and military judge who teaches military law at the University of New Mexico School of Law.

“Presidents have historically been very reluctant to call out the Army. They’ve used the authority briefly and responsibly,” he said. But, he cautioned, there are almost no checks on the president’s power to send in troops. Challenges in …

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

New York Bail Reform: A Quick Guide To Common Questions And Concerns, Emmanuel Hiram Arnaud, Beulah Sims-Agbabiaka

Faculty Scholarship

In the wake of New York state passing comprehensive bail reform in 2019, legislators encountered fervent backlash. That backlash prompted several amendments, but many questions concerning the practical effects of the reforms remain. In this Essay, we explore the history of bail in New York, the amendments, and provide answers to some of the biggest questions and concerns surrounding bail reform in New York and elsewhere.

Medical Marijuana: Implications Of Evolving Trends In Regulation, Florence Shu-Acquaye

Faculty Scholarship

No abstract provided.

Case Preview: In Newest Chapter In Long-Running Water Dispute, Court Will Hear First-Ever Challenge To Ruling By Interstate River Master, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

How Law Libraries Can Help Tell The Black Lives Matter Movement’S Story, Phebe E. Huderson-Poydras, Ronald E. Wheeler

Faculty Scholarship

In Voices Across the Spectrum, our goal is to explore issues, perspectives, and resources that focus on promoting diversity, equality, anti-racism, LGBTQ rights, multicultural outreach and recruitment into the profession, inclusive workplaces, and more. While the first installments of this new column will focus on systemic racism issues, each column will examine different diversity and inclusion issues to help prompt conversations and break down silos within the profession.

Pretrial Detention In The Time Of Covid-19, Jenny E. Carroll

Faculty Scholarship

It is hard to overstate the impact of COVID-19. When it comes to the criminal justice system, the current COVID-19 crisis has shone a light on pre-existing flaws. Long before the first confirmed case in Seattle or elsewhere, America’s jails and prisons were particularly susceptible to contagions, exacerbated by problems from overcrowding to over policing to lack of reentry programs. This Essay focuses on one aspect of the challenges the criminal justice system faces in light of COVID-19 and beyond—that of a pretrial detention system that falls more harshly on poor and minority defendants, has swollen local jail populations, and …

Genome Editing 2020: Ethics And Human Rights In Germline Editing In Humans And Gene Drives In Mosquitoes, George J. Annas

Faculty Scholarship

The moon landing, now more than a half century in the past, has turned out to be the culmination of human space travel, rather than its beginning. Genetic engineering, especially applications of CRISPR, now presents the most publicly discussed engineering challenges—and not just technical, but ethical as well. In this article, I will use the two most controversial genomic engineering applications to help identify the ethics and human rights implications of these research projects. Each of these techniques directly modifies the mechanisms of evolution, threatens to alter our views of ourselves as humans and our planet as our home, and …

Brief Of The Boston University Center For Antiracist Research As Amicus Curiae In Support Of Petitioner In Larry Thompson V. Police Officer Pagiel Clark, Shield #28472; Police Officer Paul Montefusco, Shield #10580; Police Officer Phillip Romano, Shield #6295; Police Officer Gerard Bouwmans, Shield #2102, Respondents, Angela Onwuachi-Willig, Jasmine Gonzales Rose, Neda Khoshkhoo, Caitlin Glass

Faculty Scholarship

INTEREST OF AMICUS CURIAE

The Boston University Center for Antiracist Research (the “Center”) is a nonpartisan, nonprofit university-based research institution that convenes researchers, scholars, and policy experts across disciplines to find novel and practical ways to understand, explain, and solve seemingly intractable problems of racial injustice and inequity. The Center’s interest in this case arises from its expertise in researching and understanding the harms of policies, practices, and actions that produce and sustain racial inequities, and in advancing antiracist alternatives that promote racial equity.

The Second Circuit’s interpretation of the so-called “favorable termination rule,” which imposes an “indications-of-innocence” standard, is …

A World Of Distrust, Timothy M. Mulvaney

Faculty Scholarship

In District of Columbia v. Wesby, the Supreme Court recently considered whether a prudent officer had probable cause to make warrantless arrests at a festive house party. While reactions from scholars of criminal law are beginning to emerge, this Essay is the first to conceive of the decision through the lens of property theory. In this regard, the Essay offers two principal claims. First, on interpretive grounds, it contends that Wesby generated a de facto reallocation of property interests by abolishing both (a) the right held by the general public to access without fear of arrest those properties to which …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Faculty Scholarship

No abstract provided.

#Metoo And The Myth Of The Juvenile Sex Offender, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

What Is Remembered, Alice Ristroph

Faculty Scholarship

No abstract provided.

Give Me Liberty, Or Give Me Breath: A Call For Economic Justice, Verónica C. Gonzales

Faculty Scholarship

In Part I of this essay I interpret this unique moment in history through a retelling of the folk story La Llorona in order to identify the monsters and ghosts of the past and the present. Domino Renee Perez describes her own critical reflection of La Llorona as reinforcing 'a valuable lesson about power and authority' because her family’s 'storytelling circle was more than simply an arbitrary setting; it was a safe place for them to create, however problematically, a world of words, where they faced the dangers and challenges of life, embodied by a woman, and survived.' The lore …

How Effective Are Police? The Problem Of Clearance Rates And Criminal Accountability, Shima Baradaran Baughman

Faculty Scholarship

In recent years, the national conversation in criminal justice has centered on police. Are police using excessive force? Should they be monitored more closely? Do technology and artificial intelligence improve policing? The implied core question across these national debates is whether police are effective at their jobs. Yet we have not explored how effective police are or determined how best to measure police effectiveness.

This Article endeavors to measure how effective police are at their principal function—solving crime. The metric most commonly used to measure police effectiveness at crime-solving is a “clearance rate:” the proportion of reported crimes for which …