Law Commons^™

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Indiana Law Journal

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional, paper counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology as well, arguing that use of these systems will increase the number of warrants issued throughout the United …

Guide To Bill Of Attainder Clauses In Article I, Sections 9 And 10, Matthew J. Steilen

Contributions to Books

These are commentaries on the Bill of Attainder Clauses in Article I, sections 9 and 10. Each is 2000 words long. They are forthcoming in the 3d edition of Heritage Guide to the Constitution. Topics covered include the history of English bills of attainder, the meaning of "bill," "notorious," "attainder," and other key terms, bills of attainder passed against loyalists during the American revolution, the Josiah Philips case, the legislative history of the clauses in the Philadelphia Convention, early Supreme Court decisions involving bills of attainder, and the modern doctrine. Inline citations and a short bibliography are included. The author …

Evidence Rules For Decarceration, Erin R. 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, …

Life, Liberty, And Data Privacy: The Global Cloud, The Criminally Accused, And Executive Versus Judicial Compulsory Process Powers, Rebecca Wexler

Faculty Scholarship

U.S. policymakers’ responses to a wave of global data privacy laws are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, new global data privacy laws risk cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law …

The Post-Shelby Southern Struggles, Marla Zappa

Public Interest Law Reporter

No abstract provided.

Bad Faith Prosecution, Ann Woolhandler, Jonathan R. Nash, Michael G. Collins

Faculty Articles

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel's investigation of his campaign's alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr's pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.

The advent of "progressive" prosecutors will no doubt increase claims of bad faith prosecution, …

Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire

Faculty Articles

In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Articles

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

Constitutional Losses And (Some) Statutory Wins For Criminal Defendants: Select Criminal Law And Procedure Cases From The Supreme Court's 2022-2023 Term., Eve Brensike Primus, Mark Rucci

Articles

The Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved …

Jeffrey Epstein: Pedophiles, Prosecutors, And Power, Blanche Bong Cook

Faculty Publications & Other Works

Jeffrey Epstein, a wealthy, white, billionaire child rapist, ran an international sex trafficking ring. Rather than prosecute Epstein, Alex Acosta, a former United States Attorney, brokered a deal with Epstein’s defense attorneys coined, “the sweetheart deal of the century.” When Acosta abdicated his role as a state functionary and allowed Epstein’s defense attorneys to dictate the terms of Epstein’s freedom, Acosta gave the power of the State to private parties to protect a recidivist child rapist.

The failure to prosecute Epstein is all the more problematic because it sits at the epicenter of mass incarceration. Through its carceral system, the …

If A Defendant Is Acquitted And Convicted Of Offenses Arising Out Of The Same Conduct And The Judgements Are Declared Void, Can The State Retry The Defendant On The Acquitted Charge?, Alan Raphael, Danya Moodabagil

Faculty Publications & Other Works

No abstract provided.

Minnesota Statutes Section 243.166 Subdivision 1(B) Has Got To Go: Why Requiring Predatory Offender Registration Based On A Charge As Opposed To A Conviction Violates Procedural Due Process, Alison Baker Faul

Mitchell Hamline Law Review

No abstract provided.

Opening The Virtual Window: How On-Line Processes Could Increase Access To Justice In The Criminal Legal System, Cynthia Alkon, Amy Schmitz

Faculty Scholarship

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases. Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations. This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J. It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact. The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the …

Taking The Knee No More: Police Accountability And The Structure Of Racism, David Dante Troutt

Washington and Lee Law Review

From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through …

The Prosecutor Lobby, Carissa Byrne Hessick, Ronald F. Wright, Jessica Pishko

Washington and Lee Law Review

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on …

The Perverse Carrot: How Extreme Economic Precarity Is Exploited Through Witness Perks, Roxann Matthews

University of San Francisco Law Review

No abstract provided.

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Book Review, Kirsten Campbell, The Justice Of Humans: Subject, Society And Sexual Violence In International Criminal Justice (2022), Shannon Fyfe

Scholarly Articles

In The Justice of Humans: Subject, Society and Sexual Violence in International Criminal Justice, Kirsten Campbell sets out to analyze approaches to international justice for victims of mass violence through a feminist lens. Using a remarkable breadth of disciplines, Campbell develops a “feminist social theory of the existing legal and feminist forms of international justice and a socio-legal methodology for empirically investigating them” (p. 4). She draws on her own extensive experience with the conflict in the former Yugoslavia to consider two responses to conflict-related sexual violence there: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the …

Role-Reversibility, Ai, And Equitable Justice — Or: Why Mercy Cannot Be Automated, Stephen E. Henderson, Kiel Brennan-Marquez

Faculty Articles

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within …

State V. Hudgen¸ 272 A.3d 1069 (R.I. 2022)., Judd W. Krasher

Roger Williams University Law Review

No abstract provided.

State V. Briggs, 263 A.3d 739 (R.I. 2021), Jonte' Mckenzie

Roger Williams University Law Review

No abstract provided.

Criminal Terms, Anna Roberts

Faculty Scholarship

No abstract provided.

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

The Last Stand For Union Power, Laura Christensen Garcia, Danya Moodabagil

Public Interest Law Reporter

No abstract provided.

An Examination Into The Physical And Sexual Abuse Of Children In Juvenile Detention Centers, Claudia Cornejo

Public Interest Law Reporter

No abstract provided.

Chicago's War On Crime, Madison Flores

Public Interest Law Reporter

About one in five U.S. adults say they or someone close to them has had a personal experience with gun violence.¹ Seventy-one percent of Americans also believe gun laws should be stricter.² Most people favor a federal law preventing people with mental illnesses from purchasing guns and a smaller percentage favor a nationwide ban on semi-automatic weapons.³ The debate is not so simply divided between those who want to ban all guns and those who want no restrictions on guns. Rather, many Americans value both preventing gun violence and protecting gun rights.⁴

To understand the atmosphere …

Sanctioned Abuse: Corporal Punishment, Restraint And Seclusion Of Children In Public Schools, Jasper Gingrich

Public Interest Law Reporter

No abstract provided.