Digital Commons Network^™

Modelling Pretrial Detention, Melissa Hamilton

American University Law Review

Pretrial detention has become normative in contemporary criminal justice, rather than the exception to a rule of release for individuals not convicted of any crime. Even the opportunity for release with a bond amount often eludes the many individuals who are unable to afford, to pay. Defendants detained, pending trial suffer numerous negative consequences to their own legal cases, such as being more likely to feel pressured to plead guilty and to receive a prison sentence. The high numbers of those detained appear to disproportionately impact minorities and. have contributed to mass incarceration. As a. result, of these issues, the …

The Case For Pattern-Or-Practice Investigations Against District Attorney's Office, Rory Fleming

University of San Francisco Law Review

No abstract provided.

Building Fierce Empathy, Binny Miller

Scholarly Articles in Law Reviews & Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

Fundamental Criminal Procedure (2022 Edition), Fredric I. Lederer

Faculty Publications

Fundamental Criminal Procedure explores American criminal procedure in a format ultimately destined for electronic publication. Because many students devote a great deal of their class time to taking notes, often at the expense of creative analysis, the text is intended to supply all of the necessary “black letter law” needed for mastery of the subject. The materials are, however, far more than a “study aid.” They emphasize where appropriate the crucial philosophical and policy questions and issues inherent in the subject. Periodic “Review Questions” require understanding application of academic material in a pragmatic context. “Legal Briefs” require the student to …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Victims’ Rights Revisited, Benjamin Levin

Publications

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

The Informed Jury, Daniel Epps, William Ortman

Scholarly Works

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …

Comparative Research Of The Plea Leniency System Of China, Yuguang Lu

Maurer Theses and Dissertations

This dissertation mainly discusses the Plea Leniency System that was recently legislated in China. Plea Leniency had completed a 2-year tryout stage, and was officially legalized into the Criminal Procedure Law of China in Oct.2018. The application of pleading procedures seems inevitable around the world, and operates differently in each country. As a result, there exist both similarities and differences between Chinese Plea Leniency and American plea bargaining.

This dissertation contains comparative research, empirical research and case research. Chapters I to III will form the first half of my research. This part contains my retrospective research of pleading procedure’s past …

Agatha Christie: A Look Into Criminal Procedure And Gender, Carmella Monico

Theses/Capstones/Creative Projects

With 2020 being the 100^th year since Agatha Christie’s first novel, The Mysterious Affair at Styles, was published, it seems fitting to celebrate such an accomplished author with a deeper look into the inner workings of her novels. While she wrote mystery novels that involved many detectives, the two most popular are Hercule Poirot and Miss Marple. This paper will examine these two detectives in regard to the criminal procedure each uses to solve their respective cases. Would her detectives’ work hold up in court then or even today? Additionally, the difference in gender between Poirot and Marple …

Beyond Bail, Jenny E. Carroll

Faculty Scholarship

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities …

With Unanimity And Justice For All: The Case For Retroactive Application Of The Unanimous Jury Verdict Requirement, Kara Kurland

Northwestern Journal of Law & Social Policy

Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury …

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …

Beyond Binary Thinking: Addressing The Biases That Threaten The Progressive Prosecution Movement, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

A society that regularly and systematically dehumanizes citizens of color will continue to wield the most punitive aspects of its criminal system against those citizens, so long as they are legally available. The racial discrimination that pervades the American criminal system drives its punitiveness and fosters excessive punishments that increase harm and criminal wrongdoing.

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Keynote Prosecutors And Race: Responsibility And Accountability, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Thank you so much, Madeline. I want to thank the Rutgers University Law Review and the Rutgers Center on Criminal Justice, Youth Rights, and Race for inviting me to participate in this very important symposium on Prosecutors, Power, and Racial Justice: Building an Anti-Racist Prosecutorial System. I want to give a special thanks to Professor Cohen and Gisselly, and all of the students who worked so hard to put the symposium together. It's such an important topic. I appreciate your interest, and [I] am particularly thankful to all of you [who] are here on this Friday afternoon to talk about …

The Right Against Self-Incrimination Under Indian Constitution & The Admissibility Of Custodial Statements Under The Indian Evidence Act, 1872, Khagesh Gautam

Maurer Theses and Dissertations

This work argues that the constitutional validity of section 27 of the Indian Evidence Act, 1872 is highly suspect on the ground that it violates the right against self-incrimination protected by article 20(3) of the Indian Constitution. Section 27 codifies the doctrine of confirmation by subsequent recovery, an old British rule of admission according to which self-incriminatory custodial statements and/or confessions obtained by the police or the investigation agency are admissible into evidence on the ground that contents of such statement have been confirmed by recovery of incriminating physical evidence. Chapter I locates the Indian criminal justice system within the …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Faculty Scholarship

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to …

Distinguishing Plea Discounts And Trial Penalties, Ben Grunwald

Georgia State University Law Review

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Articles & Chapters

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Behind Bartkus: A Flamboyant Lawyer, A Vindictive Judge, And The Untold Story Of Double Jeopardy’S Dual Sovereignty, Stephen E. Henderson, Dean Strang

Faculty Articles

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or …

Revocation And Retribution, Jacob Schuman

Faculty Scholarship

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill

Faculty Publications & Other Works

No abstract provided.

The Meaningless Factual Basis Inquiry Of Rule 11(B)(3), Hayley Stillwell

Faculty Articles

The near extinction of the federal criminal trial necessarily means a near extinction of numerous constitutional rights when someone is charged with committing a crime. The limited constitutional protections embedded in a change of plea hearing, then, are exceptionally important to ensure the criminal justice system convicts only the guilty. The factual basis inquiry, which ensures a conviction is not obtained in violation of due process, therefore must be meaningfully enforced to protect the criminal defendant from being convicted of a crime he does not know he did not commit. Specifically, when an element of the crime charged is the …

The Trial Lottery, Kiel Brennan-Marquez, Darryl Brown, Stephen E. Henderson

Faculty Articles

Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us. In this Article, we propose a novel mechanism to (partly) restore the criminal jury to its rightful pride of place—a trial lottery. In short, a small …