Law Commons^™

Evidence Rules For Decarceration, Erin Collins

Law Faculty Publications

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

Abolishing The Evidence-Based Paradigm, Erin Collins

Law Faculty Publications

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Why Not Both Nature And Nurture: Using Behavioral Genetic Markers As Sentencing Factors, Seely Kaufmann

Law Student Publications

"On the evening of July 1, 2013, Amos Wells was upset that his pregnant girlfriend, Chanice Reed, would not answer his calls. He then drove to where she, her mother Annette, and ten-year-old brother Eddie, lived. After arguing with Chanice and yelling at the top of his voice in a “bone-chilling scream,” Wells retrieved a handgun from his Chevrolet Tahoe parked in front of the house, and shot Chanice in the front yard as she screamed, “No, no, no.” Her mother then tried to bat the gun away before he shot her too. Further shots were heard before Wells finally …

Death Penalty Exceptionalism And Administrative Law, Corinna Lain

Law Faculty Publications

"In the world of capital punishment, the oft-repeated refrain “death is different” stands for the notion that when the state exercises its most awesome power—the power to take human life—every procedural protection should be provided. Every safeguard should be met. Granted, doing so makes the death penalty cumbersome. And granted, it slows what Justice Blackmun famously called “the machinery of death.” But when the stakes are literally life and death, the idea is that we ought to make sure that whatever the state does, it does right.

Scholars have lamented the way that this idea of death penalty exceptionalism has …

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Lain

Law Faculty Publications

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

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, …

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

Law Student Publications

This comment explores ways in which racial bias undermines the American jury system and argues that simply having a racial bias exception to the no-impeachment rule does not go far enough to guard against racially motivated jury verdicts. In order to guarantee the Sixth Amendment right to an impartial jury, defendants must always be able to question potential jurors about racial bias, and universal court policies need to be adopted across the country that allow for a consistent approach for investigating claims of racial bias in jury deliberations. Part I of this comment examines the history of American juries and …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

Law Student Publications

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Punishing Risk, Erin Collins

Law Faculty Publications

Actuarial recidivism risk assessments-statistical predictions of the likelihood of future criminal behavior-drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial …

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

Law Student Publications

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams

Law Student Publications

George Orwell's dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents- under a single warrant- to "remotely access," and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device's location is obscured through "technological means," or if agents are investigating computer crimes in five or more districts- regardless of whether …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …

Criminal Law And Procedure, Aaron J. Campbell

Law Student Publications

This article surveys recent decisions of Virginia appellate courts in the field of criminal law and procedure. The article also outlines some of the most significant changes to criminal law and procedure enacted by the 2016 Virginia General Assembly.

Humane Proposals For Swift And Painless Death, Bryce Buchmann

Law Student Publications

This comment will provide reasons why lethal injection is not the appropriate method of execution in the United States, discuss factors that should be considered in selecting a method of execution and conclude that several alternative methods of punishment are preferable to lethal injection. Part I of this comment will detail the history of lethal injection in the United States and the issues associated with the practice. Part II examines how the government determines which method of execution is appropriate. Finally, Part III provides proposals for more humane punishment and concludes the comment.

Virginia Practice Series: Jury Instructions, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

Virginia Practice Series-Jury Instructions is a continuation and update of previous editions, which won widespread approval among the bench and bar for almost 40 years.

As in the past, this book is primarily confined to the most common areas of jury trial work, torts and criminal law. Where possible, the language of the instructions is taken directly from reported cases or case records. Where this is not possible, we have set out instructions that should meet both the general rules regarding the form of instructions and the specific substantive legal rules. In the latter cases, close attention has been paid …

Charging On The Margin, Paul T. Crane

Law Faculty Publications

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses- penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on …

The Criminalization Of Title Ix, Erin R. Collins

Law Faculty Publications

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses …

Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain

Law Faculty Publications

In this Response, I first engage with McLeod’s article, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with the analytical moves it makes along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other …

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

Law Student Publications

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

Restorative Justice For Multinational Corporations, Andrew B. Spalding

Law Faculty Publications

Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address …

The Politics Of Botched Executions, Corinna Barrett Lain

Law Faculty Publications

In this symposium essay, I explore the politics of botched executions, discussing state responses to the latest round of executions gone wrong and the ways in which those responses matter. Part I recounts four botched executions in 2014 and the state responses that accompanied them. Part II makes three observations about those responses-one about states' fealty to the death penalty, one about backlash politics and the scope of the public relations problem, and one about the changing cultural construct of lethal injection in the United States. Part III explores how state responses to botched executions (or the lack thereof) might …

A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao, Iii

Law Student Publications

This comment recommends that Virginia cease its use of lethal injection because of its high botch rates and growing impracticability due to drug shortages. Instead, the Commonwealth should use the firing squad as a more effective means of execution, thereby leading the nation in a transition towards a more efficient and reliable method.

The Twilight Zone: Perspectives From A Man On Death Row, Leah Stiegler

Law Student Publications

This interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate.

Making Sure We Are Getting It Right: Repairing "The Machinery Of Death" By Narrowing Capital Eligibility, Ann E. Reid

Law Student Publications

This comment argues that, starting with the framework of the federal system, there is a way to reconcile modern concerns about the death penalty with society's need for leverage over those criminals who truly are the worst of the worst-those who present grave threats to society even after incarceration. This reconciliation can be achieved by amending the Federal Death Penalty Act to require prosecutors to establish one additional element before they can secure a capital conviction: future dangerousness of the defendant in prison..

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and its tragic …

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study …