Law Commons^™

The Right To Violence, Sean Hill

Utah Law Review

Scholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.

Yet the state explicitly authorized private violence against enslaved people …

Mass E-Carceration: Electronic Monitoring As A Bail Condition, Sara Zampierin

Utah Law Review

Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects …

A New Test For The New Crime Exception, Colin Miller

Utah Law Review

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

25 Is The New 18: Extending Juvenile Jurisdiction And Closing Its Exceptions, Dylan Raymond

Utah Law Review

Courts are in broad agreement that juveniles—defined as people under 18-yearsold — are less culpable than adults and thus punish them differently. Indeed, few would disagree that the adult criminal system should apply only to adults—people “fully developed and mature.” If separating adults and juveniles based on culpability is the goal, it begs a simple question: should the split happen at age 18? Some U.S. institutions imply that they believe an 18-year-old lacks the requisite maturity to assume certain responsibilities, including the House of Representatives and car rental agencies, which permit participation at 25. Looking globally, important institutions like the …

How Victim Impact Statements Promote Justice: Evidence From The Content Of Statements Delivered In Larry Nassar's Sentencing, Paul Cassell, Edna Erez

Utah Law Faculty Scholarship

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of …

Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan H. Jackson

Utah Law Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson

Utah Law Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Do You See What I See? The Science Behind Utah Rule Of Evidence 617, Louisa Heiny

Utah Law Faculty Scholarship

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness, but rather a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

Transforming Crime Victims’ Rights: From Myth To Reality, Robyn Holder, Tyrone Kirchenghast, Paul Cassell

Utah Law Faculty Scholarship

Rights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person. In this Guest Editors Introduction to the Special Issue, Making Rights Real, we suggest that victims’ rights are in transition. Rights may be set out in legal instrument but, we argue, it is through the practices of people in their myriad settings that are part of that shift to realising rights in action. We describe ways in which we see victims’ rights being realised in different parts of the …

Prosecutors And Mass Incarceration, Shima Baughman

Utah Law Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Explaining The Recent Homicide Spikes In U.S. Cities: The 'Minneapolis Effect' And The Decline In Proactive Policing, Paul Cassell

Utah Law Faculty Scholarship

Recently major cities across the country have suffered dramatic spikes in homicides. These spikes are remarkably large, suddenly appearing, and widespread. At this rate, 2020 will easily be the deadliest year in America for gun-related homicides since at least 1999, while most other major crime categories are trending stable or slightly downward.

This article attempts to explain why so many cities have seen extraordinary increases in murder during the summer of 2020. A close analysis of the emerging crime patterns suggests that American cities may be witnessing significant declines in some forms of policing, which in turn is producing the …

Supreme Court Clerks And The Death Penalty, Matthew Tokson

Utah Law Faculty Scholarship

This Essay is part of GW's Supreme Court Clerks at 100 symposium.

The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.

A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began to …

Dividing Bail Reform, Shima Baughman

Utah Law Faculty Scholarship

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. …

Harm, Sex, And Consequences, India Thusi

Utah Law Review

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism …

Stemming The Expansion Of The Void-For-Vagueness Doctrine Under Johnson, Clancey Henderson

Utah Law Review

This Note addresses the constitutionality of the risk-of-force clause. Since many of the cases challenging the risk-of-force clause proceed on the argument that it is indistinguishable from the ACCA’s residual clause, the history of the residual clause is particularly relevant. Addressing the constitutionality of the risk-of-force clause will necessarily entail a discussion of whether it is distinguishable from the residual clause. Accordingly, brief histories of the ACCA and the residual clause will be given. This overview will provide a backdrop to the discussion of the Supreme Court’s struggle to define and apply the residual clause in numerous cases preceding the …

The New Amy, Vicky, And Andy Act: A Positive Step Towards Full Restitution For Child Pornography Victims, Paul Cassell, James R. Marsh

Utah Law Faculty Scholarship

In this article, we review some of the valuable steps forward found in the AVAA, as well as the work that remains to be done. But in closing, it may be useful to remember that the legal issues swirling around restitution decisions have real world consequences, both for the defendants who must pay the restitution awards and the victims who need and deserve compensation. As between these two groups, however, the equities tip decisively in favor of victims. To be sure, large restitution awards have financial consequences for criminal defendants. But the stark fact remains that criminals have a choice …

Overstating America's Wrongful Conviction Rate? Reassessing The Conventional Wisdom About The Prevalence Of Wrongful Convictions, Paul Cassell

Utah Law Faculty Scholarship

A growing body of academic literature discusses the problem of wrongful convictions — i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher — at least 1%, and perhaps as high as 4% or even more.

This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the …

Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell

Utah Law Faculty Scholarship

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor …

Bucklew V. Precythe : Brief Of Arizona Voice For Crime Victims, Inc., And Melissa Sanders As Amici Curiae In Support Of Respondents, Paul Cassell, Allyson N. Ho, Daniel Nowicki, Daniel Chen

Utah Law Faculty Scholarship

This amicus brief in Bucklew v. Precythe discusses how undue delay in capital cases can harm crime victims’ families. After reviewing the facts of the cases, the brief draws on the available scholarship to show how extended delays in criminal cases – and particularly death penalty cases – can compound the harms and exacerbate the trauma that victims’ families suffer. The brief concludes that the important interests of victims should be vindicated by affirming the judgment reached below.

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …

The History Of Misdemeanor Bail, Shima Baughman

Utah Law Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides …

Jurisdiction-Specific Wrongful Conviction Rate Estimates: The North Carolina And Utah Examples, Paul Cassell

Utah Law Faculty Scholarship

Determining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in …

Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin

Utah Law Faculty Scholarship

Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Utah Law Review

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

Bystander No More? Improving The Federal Response To Sexual Violence In Indian Country, Sarah Deer

Utah Law Review

For better or worse, the federal government has taken responsibility for providing for the protection of Native people. So long as the federal government refuses to allow tribes to govern themselves completely and independently, it is imperative that the federal government enact policies empowering Native survivors of sexual assault. The federal government must do more to protect tribal members from sexual predators, to safeguard reservations not only from career criminals but also to ensure that federal agencies like the Bureau of Indian Affairs and the Indian Health Services do not hire men with a history of violence against women or …

The Bail Book: A Comprehensive Look At Bail In America's Criminal Justice System - Introduction, Shima Baughman

Utah Law Faculty Scholarship

Mass incarceration is one of the greatest social problems facing the United States today. America incarcerates a greater percentage of its population than any other country and is one of only two countries that requires arrested individuals to pay bail to be released from jail while awaiting trial. After arrest, the bail decision is the single most important cause of mass incarceration, yet this decision is often neglected since it is made in less than two minutes. Shima Baradaran Baughman draws on constitutional rights and new empirical research to show how we can reform bail in America. Tracing the history …

Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …

Crime Victims' Rights, Paul Cassell

Utah Law Faculty Scholarship

Over the last 40 years, advocates for crime victims have succeeded in enshrining victims’ rights in state constitutions and other enactments. These provisions show that a consensus has developed around the country on certain core victims’ rights. Included in the core are, among other things, the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that …

Can We Protect The Innocent Without Freeing The Guilty? Thoughts On Innocence Reforms That Avoid Harmful Tradeoffs, Paul Cassell

Utah Law Faculty Scholarship

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.

With this caution in mind, it is possible to craft reforms that help to protect the …