Law Commons^™

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

Coming Of Age In The Eyes Of The Law: Theconflict Between Miranda, J.D.B., And Puberty, David M. N. Garavito

Articles

Everyone knows that going through puberty is associated with a multitude of changes: physical, mental, hormonal, etc. Fewer people know that when and how fast one goes through puberty can also be associated with changes to one’s legal rights. The Supreme Court of the United States held, in the landmark case of J.D.B. v. North Carolina, that there were many “commonsense conclusions” that could be drawn from how a child’s age would affect their interactions with law enforcement. In that case, the Court was deciding whether age should affect whether a child was considered “in custody” of the police, granting …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

The Finality Of Unmodified Appellate Commissioner Rulings In Washington State, Aurora R. Bearse

Washington Law Review Online

In Washington appellate courts, unelected court commissioners handle most of the motion practice. Some motions are minor and mostly procedural, but other motions touch on the scope of the appeal or its merits. Because commissioners have the power to shape the course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally appeal any commissioner decision to a panel of elected judges, via what is called a “motion to modify” under RAP 17.7. If a panel modifies a commissioner’s ruling, the panel’s decision becomes the final decision of the court on that issue. Similarly, multiple opinions recognize …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Revocation And Retribution, Jacob Schuman

Washington Law Review

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, …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

"Benevolent Paternalism" Revisited, Daniel H. Foote

Articles

Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

Benevolent Exclusion, Anna Offit

Washington Law Review

The American jury system holds the promise of bringing common sense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the …

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger

Washington Law Review Online

Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due …

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …

When The Icc Comes Knocking, The United States Should Welcome It With Open Arms, Brittney A. Dimond

Washington International Law Journal

The Office of the Prosecutor of the International Criminal Court requested approval to open a formal investigation into war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003. If the investigation is approved, the United States will have significant implications not only for relations going forward between the United States and the ICC, but also for the international communities' understanding of the Court's jurisdiction.Three of the United States' likely response options based on its past and current relationshipo with the ICC include: (1) declining to cooperate with the ICC based on a denial of jurisdiction due to …

Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze

Washington Law Review

A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes …

Danger Ahead: Risk Assessment And The Future Of Bail Reform, John Logan Koepke, David G. Robinson

Washington Law Review

In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people—particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests. …

Contesting Police Credibility, Rachel Moran

Washington Law Review

Criminal cases often amount to credibility contests between two actors: the complainant, testifying for the government, and the defendant. In theory, the defendant’s opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining …

Incentivized Informants, Brady, Ruiz, And Wrongful Imprisonment: Requiring Pre-Plea Disclosure Of Material Exculpatory Evidence, Markus Surratt

Washington Law Review

An incentivized informant scandal recently hit Orange County, California where county officials were caught lying, hiding, and not providing information about their informants. Concerned citizens, attorneys, and scholars are beginning to ask more questions as these stories receive increased nationwide attention: what should we do about false incentivized informant testimony? What can we do? Under Brady, Giglio, Ruiz, and their progeny, in criminal cases the government must turn over any material exculpatory evidence that it possesses, or that is available, when the defendant decides to go to trial. However, if the government does not know—or purports not …

The "Time Of Arrest" Rule: How The Washington State Supreme Court Untethered Its Search Incident To Arrest Jurisprudence From The Exception's Underlying Rationales, Laura Zanzig-Wong

Washington Law Review Online

The search incident to arrest exception is based on two exigencies: officer safety and evidence preservation. In searches incident to arrest of an arrestee’s person, these exigencies are presumed. Recently, the Washington State Supreme Court extended this presumption to all items carried by an arrestee at the time of arrest, regardless of whether the arrestee can access such items at the time of the search. I argue that this extension untethers the search incident to arrest doctrine from its underlying rationales and focuses too heavily on the practical issue of transporting an arrestee’s belongings to the station post-arrest. In doing …

The "Time Of Arrest" Rule: How The Washington State Supreme Court Untethered Its Search Incident To Arrest Jurisprudence From The Exception's Underlying Rationales, Laura Zanzig-Wong

Washington Law Review Online

The search incident to arrest exception is based on two exigencies: officer safety and evidence preservation. In searches incident to arrest of an arrestee’s person, these exigencies are presumed. Recently, the Washington State Supreme Court extended this presumption to all items carried by an arrestee at the time of arrest, regardless of whether the arrestee can access such items at the time of the search. I argue that this extension untethers the search incident to arrest doctrine from its underlying rationales and focuses too heavily on the practical issue of transporting an arrestee’s belongings to the station post-arrest. In doing …

Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayama

Washington International Law Journal

Malcolm M. Feeley examined cases of criminal justice reform in the United States, where reforms can be conceived and initiated in a very open structure, but implementation of the introduced reforms can be handed over to highly fragmented implementers. The story of mandatory videotaping of interrogations and accompanying changes in Japan demonstrates the reform process at the other end of the scale, where the members of the criminal justice establishment can exert a strong influence even at the conception and initiation stages, and have even stronger control at the implementation and routinization stages. We believe that Feeley’s theoretical framework can …

Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su

Washington International Law Journal

This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations …

South Africa's Dilemma: Immunity Laws, International Obligations, And The Visit By Sudan's President Omar Al Bashir, Ntombizozuko Dyani-Mhango

Washington International Law Journal

President Al Bashir has avoided the International Criminal Court (“ICC”) for seven years and has been able to travel to both states that are party to the Rome Statute and states that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of states parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the …

Third Party Consent And Container Searches In The Home, Harlan Thomas Mechling

Washington Law Review

Circuit courts disagree as to whether law enforcement officers have a duty to inquire about a resident’s actual authority to consent to searches of ambiguous containers in a common area. Two circuit courts use the ambiguity approach and two circuit courts use the obviousness approach. The ambiguity approach articulated by the D.C. Circuit in United States v. Peyton provides protection for individuals’ rights while placing a minimal burden on law enforcement officers. In Peyton, the D.C. Circuit held that law enforcement officers have a duty to ask clarifying questions if ownership over a container is ambiguous. The ambiguity approach …

The Bright Line's Dark Side: Pre-Charge Attachment Of The Sixth Amendment Right To Counsel, Steven J. Mulroy

Washington Law Review

In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage …

Justice Visualized: Courts And The Body Camera Revolution, Mary D. Fan

Articles

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story—or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception.

Now a revolution is coming. Across the nation, police departments are deploying body cameras. Analyzing body camera policies from police departments across the nation, the article reveals an unfolding future where much of the main staple events of criminal procedure law will be recorded. Much of the current focus is on …