Law Commons^™

On Lenity: What Justice Gorsuch Didn’T Say, Brandon Hasbrouck

Scholarly Articles

This Essay was first published online at 108 Va. L. Rev. Online 239 (2022).

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. …

The Inequity Of Third-Party Bail Practices, Judge Patrick Carroll

Loyola University Chicago Law Journal

For many criminal defendants, a common source of bail funds is their own family or friends. Such individuals typically assist in the expectation that if the defendant complies with court orders and satisfies all court appearances, their money will be returned to them. In revenue-motivated court systems, however, bail funds--even when owned by a third party--are often applied to the defendant's fines and court costs, resulting in the effective forfeiture of the friend or relative's money. This Article reviews the processes of third-party bonds, the risk that a third-party bond will be incorrectly identified as the defendant's asset, and the …

Dna Exonerations And Stakeholder Responses: A Case Of Cognitive Dissonance, Anne Richardson Oakes, Julian Killingley

Tennessee Law Review

The availability of DNA testing developed in the 1980s transformed the ability of prosecutors to secure convictions while providing Innocence Projects with the tools to overturn them. However, DNA exonerations which establish conclusively that a person convicted of a crime is in fact innocent, can represent a major threat to the value systems and therefore the self-belief of stakeholders who acted in good faith and in the genuine but mistaken belief that the exoneree was guilty. This Article reports on the findings of an investigation into stakeholder responses to DNA exonerations between 1990-1999 when DNA evidence was new and more …

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

No abstract provided.

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

McGeorge School of Law Scholarly Articles

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Triaging Lomax: An Urgent Proposal For Legislative Reform To Restore Judicial Protection In American Prisons, Alexis B. Thurston

Duquesne Law Review

In a 2003 study of trends in inmate litigation before and after the enactment of the Prison Litigation Reform Act ("PLRA"), Harvard Law School Professor Margo Schlanger described the PLRA's administrative exhaustion requirement as "the statute's most damaging component."¹ Almost two decades later, in June of 2020, the United States Supreme Court indirectly strengthened the administrative exhaustion requirement through its ruling in Lomax v. Ortiz-Marquez.² In Lomax, the Court found that all dismissals of inmate litigation resulting from the failure of an incarcerated plaintiff to adhere to the exhaustion requirement would count as "strikes" against the …

What Machines Can Teach Us About "Confrontation", Andrea Roth

Duquesne Law Review

In this short Article, I argue that treating non-human conveyances of information-and other forms of evidence that cannot be cross-examined-as beyond the Confrontation Clause is unsatisfactory as a matter of text, history, logic, and principle. Instead, all of these clues lead to one conclusion: the right of confrontation is a right not only to physical presence of certain human witnesses to facilitate demeanor review and questioning, but to a meaningful opportunity to scrutinize the government's proof, whatever its form.⁸ That right would include out-of-court discovery of critical contextual information about the evidence, whether or not exculpatory, and a …

Considering "Machine Testimony": The Impact Of Facial Recognition Software On Eyewitness Identifications, Valena Beety

Duquesne Law Review

Andrea Roth's seminal work in Machine Testimony and Trial by Machine presented a problem that is now upon us: addressing biased algorithms and the rampant reliance on technology by prosecutors and law enforcement.¹ That reliance, however, is no longer unquestioning. Roth's work came at a crucial moment in time, when other articles were embracing the apparent impartiality of technology and algorithms for use in the criminal legal system. Her scholarship steered us away from that blind acceptance and dove deep, not only questioning technology itself, but also how to frame those questions of technology in the courtroom.

Ending Manner-Of-Death Testimony And Other Opinion Determinations Of Crime, Keith A. Findley, Dean A. Strang

Duquesne Law Review

In January 2011, Ellen Greenberg's fianc6 and her apartment building manager broke down her apartment door after she failed repeatedly to respond to attempts to contact her.¹ They found herd ead in a pool of blood on the kitchen floor, the victim of twenty stab wounds to her chest, torso, head, and neck, including stab wounds to the back of her head and to her body through her clothes. They found a half-eaten fruit salad on the kitchen counter along with an overturned knife block. By all appearances, Greenberg was the victim of a grisly murder, and the medical …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

The Common Prosecutor, Melanie D. Wilson

Loyola University Chicago Law Journal

This symposium piece stems from the Loyola University of Chicago Law Journal's Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

When A Second Change Gets A Second Chance: Reasonableness Review Reigns For Motions Under Section 404 (B) Of The First Step Act On Appeal, Patrick W. Riley

American University Law Review

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine. Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine. In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1. However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act. Those already sentenced under the 100:1 ratio were …

Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington

Upper Level Writing Requirement Research Papers

No abstract provided.

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Considering "Machine Testimony": The Impact Of Facial Recognition Software On Eyewitness Identifications, Valena Beety

Articles by Maurer Faculty

This Article uses a wrongful conviction lens to compare identifications by machines, notably facial recognition software, with identifications by humans. The Article advocates for greater reliability checks on both before use against a criminal defendant. The Article examines the cascading influence of facial recognition software on eyewitness identifications themselves and the related potential for greater errors. As a solution, the Article advocates the inclusion of eyewitness identification in the Organization of Scientific Area Committees' ("OSAC") review of facial recognition software for a more robust examination and consideration of software and its usage. The Article also encourages police departments to adopt …

Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill

Articles

Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …

Something For Nothing: Untangling A Knot Of Section 230 Solutions, Nicholas Bradley

Cardozo Law Review de•novo

Social media platforms have become the dominant public forum of the modern age but there is a big problem: they are privately owned and can moderate content however they like. This right is protected both by the First Amendment and Section 230 of the Communications Decency Act, the latter of which creates immunity from suit for platforms that exercise their right to moderate content by removing—or not removing—objectionable content. Politicians on both sides of the aisle have complained that platforms are abusing this immunity and, while they have put forward a wide variety of legislative solutions, none of them have …

Against Criminal Law Localism, Brenner M. Fissell

Maryland Law Review

No abstract provided.

The Use And Abuse Of Domestic National Security Detention, Nicole Hallett

Seattle University Law Review

Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes—by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it? The case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s, and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Foreword, Seattle University Law Review

Seattle University Law Review

Foreward

Keynote Address, Justin Hansford

Seattle University Law Review

Keynote Address by Justin Hansford

Coerced Testimony Of A Witness, As Opposed To The Fabrication Of Evidence, Should Not Be Used As A Basis To Satisfy A § 1983 Claim For Alleged Due Process Violations In An Underlying Criminal Matter, 55 Uic L. Rev. 40 (2022), Jonathan Federman, Kyle Fleck

UIC Law Review

No abstract provided.

The Real Mccoy: Defining The Defendant’S Right To Autonomy In The Wake Of Mccoy V. Louisiana, Colin Miller

Loyola University Chicago Law Journal

Defense counsel, and not the defendant, has the power to make most decisions in a criminal case. Until recently, there were only four decisions reserved for the defendant: whether to (1) plead guilty, (2) waive the right to a jury trial, (3) testify, and (4) forgo an appeal. In McCoy v. Louisiana, the United States Supreme Court recently added a fifth decision reserved for the client: the right to autonomy, i.e., the right to decide on the objective of her defense. Under this right, a defendant can prevent her attorney from admitting her legal guilt at trial by preemptively objecting …

Unincorporating Qualified Immunity, Teressa Ravenell

Loyola University Chicago Law Journal

Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Scholarly Works

No abstract provided.

Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen

Seattle University Law Review

Through an in-depth examination of Hernández, the Inter-American Human Rights System, and the success of Mexico’s partnership with said system, this Note will make a case for embracing human rights bodies— specifically, the Inter-American System on Human Rights—as an appropriate and necessary check on the structures that form the United States government. Part I will look closely at the reasoning and judicially created doctrine that guided the decision in Hernández, with the goal of providing a better understanding of the complicated path through the courts that led to a seemingly straightforward yet unsatisfying result. Part II will illustrate the scope …

Race In Washington’S Juvenile Legal System: 2021 Report To The Washington Supreme Court, Task Force 2.0 Juvenile Justice Subcommittee

Seattle University Law Review

Part I of this report provides the core work of the subcommittee and is intended to function as a stand-alone document, expressed in youth- friendly language, that sets forth: (1) the youth-articulated goals for systemic change to the juvenile legal system; (2) a narrative of how the system currently works and the harms caused; and (3) the change needed to bring about the youth-articulated goals for systemic change. This document is intended to be a youth-centered blueprint for change—a tool for community advocates, a framework for policy makers, and a call-in to the many institutional actors to center the leadership …