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Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Show Me Criminal Procedure, Ben L. Trachtenberg, Anne M. Alexander

Open Educational Resources

Show Me Criminal Procedure is an open educational resources casebook available for free to students. This is the 2d ed. published in Spring 2019.

Multiple Foster Care Placements Should Be Considered A Mitigating Factor In Criminal Proceedings, Daniel Pollack, Khaya Novick Eisenberg Dr., Amanda Dolce Esq.

Ohio Northern University Law Review

No abstract provided.

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

UF Law Faculty Publications

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

Articles & Chapters

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of law and …

The Left's Law-And-Order Agenda, Aya Gruber

Publications

No abstract provided.

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Journal Articles and Book Chapters

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Possibilities Of Comparative Criminal Procedure In Reforming And Modernizing The Judicial And Legal System Of Uzbekistan, A.R. Akilov, S.D. Alimova

Review of law sciences

In this article, the author attempted to reveal the possibilities of a new direction of legal science, emerging not only in Uzbekistan, but also in the entire post-Soviet space – comparative criminal procedural law, which can be used at the present stage of reforms and changed in Uzbekistan in the field of justice. In particular, the comparative criminal procedure law can successfully, on the basis of the proven experience of the most developed democratic countries, solve many tasks identified in the field of justice recently adopted. Development strategy on five priority directions of the Republic of Uzbekistan for 2017–2021. These …

Fall 2017 Symposium: The Challenge Of Crime In A Free Society: Fifty Years Later, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

My longstanding interest in the Johnson Crime Commission traces back to my earlier scholarly work on the history of criminal law reform movements, going back to the progressive criminal justice reform agenda in the early twentieth century and the activities of private law-reform coalitions and government-sponsored crime commissions during the interwar period, including the Wickersham Commission and the American Law Institute's various model code projects. This research eventually led me to the Johnson Commission, the subject of this Symposium.

What To Expect When You Are Arrested: A Guide To Navigating For Unhoused Defendants, Brittany Chiechi, Ivona Ogramic, Colleen Rowe, Sara Rankin

Homeless Rights Advocacy Project

Public defenders often are overworked and have little time to spend with clients; many defendants do not even receive one. But even represented unhoused defendants can help themselves with HRAP’s first-of-its-kind guide to navigating court, which introduces common legal terms and timelines, and provides strategies for those experiencing homelessness to advocate for themselves.

Trammel V. United States: Bad History, Bad Policy, And Bad Law, Michael W. Mullane

Maine Law Review

In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment …

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Scholarly Articles

None available.

Innovating Criminal Justice, Natalie Ram

Northwestern University Law Review

From secret stingray devices that can pinpoint a suspect’s location, to advanced forensic DNA-analysis tools, to recidivism risk statistic software—the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding these technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and ultimately unnecessary for the production of well-designed criminal justice tools.

This Article makes three contributions to the existing literature. First, the Article establishes that trade secrecy now permeates American criminal justice, shielding privately developed criminal justice …

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Publications

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

Perceptions Of Justice : Views Of Jailed Defendants On Procedural And Distributive Justice, Kirstin Anne Morgan

Legacy Theses & Dissertations (2009 - 2024)

The current study examines defendant perceptions of their recent experiences in one of two criminal courts in an urban-suburban county. Forty-three interviews were conducted with jail sentenced participants, during which they were asked about the perceived fairness of the case process and outcomes, as well as their relationship with their defense attorney for the case. This study was undertaken to answer four research questions: 1) Are the concepts of procedural and distributive justice related from the defendant perspective? 2) Are perceptions of procedural justice related to satisfaction with case outcomes? 3) Are perceptions of procedural justice related to satisfaction with …

Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

The Myth Of Preliminary Due Process For Misdemeanor Prosecutions In New York, Anjali Pathmanathan

Faculty Publications

The existing criminal procedure laws of New York do not afford the misdemeanor accused any meaningful preliminary opportunity to fight the substantiation of the accusations against them. This is problematic given that a criminal prosecution can have extreme consequences on an individual’s life, including the loss of liberty, employment, housing, child custody or freedom from immigration removal proceedings. This article therefore analyzes the weaknesses in the existing criminal procedure laws for these prosecutions, and assesses how historical protections dissolved into the myth of preliminary due process for misdemeanor cases today. Ultimately, since the current procedures are ineffective in protecting against …

My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a …

How Can I Reconcile With You When Your Foot Is On My Neck: The Role Of Justice In The Pursuit Of Truth And Reconciliation, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

In Ferguson, a wound bleeds. For 108 days, we have been in a state of prolonged and protracted grief.... We have had no choice but to cling together in hope, faith, love and indomitable determination to capture that ever-escaping reality of justice ... we find ourselves reinjured, continually heartbroken, and robbed of even the remote possibility of judicial resolution. For 108 days, we have continuously been admonished that we should "let the system work," and wait to see what the results are. The results are in. And we still don'thavejustice. . . . We, altogether, bound up in a system …

Captured At The Scene: A Proposal For The Admissibility Of Visually Recorded Scene Statements From Domestic Violence Complainants In Western Australia, Benjamin Procopis

Theses : Honours

In 2015, New South Wales introduced a legislative reform termed DVEC, which made admissible as evidence in chief, visually recorded statements from domestic violence complainants. Unlike other pre-recorded evidence, DVEC is captured at the scene of the incident, shortly after the event. The impetus for implementing DVEC was to overcome the issues identified with prosecuting domestic violence offences owing to the power imbalance in the relationship and the vulnerability of the complainant. In Western Australia, visually recorded statements from children and those with mental impairment are presently admissible for the same underpinning reasons. Police prosecutors and defence counsel participated in …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Publications

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …