Law Commons^™

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

When Machines Can Be Judge, Jury, And Executioner: Justice In The Age Of Artificial Intelligence (Book Review), Stacy Fowler

Faculty Articles

In When Machines Can Be Judge, Jury, and Executioner, former federal judge Katherine Forrest raises concerns over the pervasive use of artificial intelligence (AI) in the American justice system to produce risks and need assessments (RNA) regarding the probability of recidivism for citizens charged with a crime. Forrest’s argument centers on AI’s primary focus on utilitarian outcomes when assessing liberty for individual citizens. This approach leads Forrest to the conclusion that in its current form, AI is “ill-suited to the criminal justice context.” Forrest contends that AI should instead be programmed to focus on John Rawl’ 'concept of justice as …

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 …

A Tribute To Gerald S. "Geary" Reamey, Michael Ariens

Faculty Articles

Geary Reamey began teaching at St. Mary's University School of Law in the Fall 1982 semester. He will have taught for forty-one years at St. Mary's when he retires in May 2023. Geary is known throughout Texas for his work, both as a speaker and as a writer, educating lawyers and judges about Texas criminal law and procedure. He is known among St. Mary's Law alumni for creating and operating, along with the late John Schmolesky, a vibrant criminal law and procedure curriculum, including the first-year Criminal Law course.

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

Faculty 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 …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

Making Deflection The New Diversion For Drug Offenders, Kay L. Levine, Joshua C. Hinkle, Elizabeth Griffiths

Faculty Articles

The argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in …

Victims’ Rights In The Diversion Landscape, Kay L. Levine

Faculty Articles

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

A Few Words For The Firing Squad (Editorial), Alexandra L. Klein, Brandon Hasbrouck

Faculty Articles

South Carolina’s governor has signed into law a bill adding the firing squad as one of the methods of execution that a person sentenced to death must choose between if lethal injection drugs are unavailable. This editorial discusses the inherent issues with the bill.

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

Police Use Of Force Laws In Texas, Gerald S. Reamey

Faculty Articles

At the heart of calls for police reform lie use of force laws. While policing agencies adopt and enforce their own policies regarding when and how force may be used by officers of those agencies, state laws rarely define the uniform limits under which officers operate. Policing in the United States is highly fractured; of the hundreds of law enforcement agencies operating, most are autonomous, and they determine the policies under which they operate, including those for use of force. They also decide whether and how to investigate violations of internal policies, as well as the punishment that will be …

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Resolving Civil Forfeiture Disputes, Rishi Batra

Faculty Articles

Under a legal process known as civil asset forfeiture, state and federal laws allow law enforcement officials and the government to seize assets from individuals who are not charged with a crime if the property is suspected of being involved in criminal activity. This is true even if the owner of the property is not charged with the underlying crime. Indeed, in 2014, The Washington Post analyzed 400 cases in seventeen states that were examples of civil forfeiture during traffic stops. Police stopped motorists under the pretext of a minor traffic infraction, analyzed the intentions of motorists by assessing nervousness, …

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

The Attrition Of Rights Under Parole, Tonja Jacobi, Song Richardson, Gregory Barr

Faculty Articles

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and …

Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland

Faculty Articles

This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not …