Law Commons^™

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 …

Addressing The Inevitability Of Race In The Doj’S Enforcement Of The Pattern-Or-Practice Initiative, Joshua Chanin

Loyola University Chicago Law Journal

Section 14141 of the 1994 Crime Act empowers the U.S. Department of Justice (DOJ) to investigate and drive reform of local law enforcement agencies found to have engaged in a pattern or practice of misconduct. During the Trump administration, the DOJ willfully allowed its powers under this section to lie dormant, despite a number of high-profile incidents of police violence against Black Americans. Active enforcement of Section 14141 affords the federal executive branch significant opportunities to promote lawful policing. Using its pattern-or-practice authority, the DOJ has guided dozens of law enforcement agencies through a process designed to remedy systemic unlawful …

Justice Delayed: The Complex System Of Delays In Criminal Court, Kat Albrecht, Maria Hawilo, Meredith Martin Rountree, Thomas Geraghty

Loyola University Chicago Law Journal

While federal and state constitutions and statutes guarantee criminal defendants a speedy trial, in practice these rights are exceedingly difficult to enforce. Felony criminal cases can be tied up in court for years. Defendants and victims return to court repeatedly, but progress in resolving their cases is slow.

This Article uses unique data from Cook County, Illinois, to illuminate a complicated and path-dependent system of delay in the Criminal Division of the Circuit Court of Cook County. Our analysis demonstrates that delay is not only pervasive, but also central to how this criminal court system functions.

The Article first reviews …

It Was Never About A Cake: Masterpiece Cakeshop And The Crusade To Weaponize Religious Freedom, Andrew L. Seidel

Loyola University Chicago Law Journal

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 …

Bargain Basement Progressivity? Constitutional Flat Taxes, Demogrants, And Progressive Income Taxation, Samuel D. Brunson

Loyola University Chicago Law Journal

State and local governments raise revenue in three primary ways: property, sales, and income taxes. Property and sales taxes tend to impose a higher burden on low-income households. To ensure the fairness and progressivity of their overall revenue system, states need their income tax to be sufficiently progressive.

Four states face an apparently insurmountable barrier to progressive income taxation: their state constitutions mandate that any income tax must have a flat rate, applicable to all taxpayers. Without a constitutional amendment, a difficult process, they cannot adopt marginal rates that increase as income increases.

While the impediment appears insurmountable, however, it …

Afghanistan On A Global Stage: The End Of Armed Conflict And Congress’S Constitutional Powers, Emmie Phillips

Loyola University Chicago Law Journal

On August 15, 2021, the Taliban took control of Kabul, ending their weeks-long takeover of Afghanistan. Distraught by the quick offensive, United States forces and their allies quickly secured the Kabul airport and were forced to accelerate their planned withdrawal from the country in a makeshift manner. Afghan civilians, particularly those who had supported the efforts of U.S. forces, desperately attempted to get out of the country. The chaotic and disorganized withdrawal was not well received, both in the United States and internationally.

Prior to the Taliban takeover, President Joe Biden had ordered the U.S. withdrawal, with an expected end …

American Kaleidoscope: An Intersectional Approach To The Cultural Defense, Lillian Mobley

Loyola University Chicago Law Journal

The cultural defense is a controversial legal strategy that allows criminal defendants to offer evidence of their native culture to mitigate culpability. While courts usually decline to formally consider these defenses, cultural influences are increasingly present in the courtroom, demanding recognition in the midst of a Eurocentric legal system. The cultural defense can be an important tool for achieving justice in minority and immigrant communities. In practice, however, the defense can slip dangerously off-course, reinforcing white American norms and reductive stereotypes. Ultimately, an “official” defense allowing cultural evidence at trial may cause more harm than good. Instead, this Comment advocates …

Illinois Courts Struggle With Implicit Bias And Justice Stevens’S Legacy: Why Illinois Should Revisit His Dissenting Opinion In Purkett V. Elem, Ted A. Donner

Loyola University Chicago Law Journal

Contemporary racial justice movements and increased interest in implicit bias are shining a spotlight on the role of peremptory challenges in jury selection and how best to combat prejudice in this essential step of the criminal justice system. States such as Arizona and Washington have undertaken reforms designed to shift a dynamic that, under Batson, has prioritized obvious and intentional discrimination and ignored the more subtle but perhaps equally insidious effects of implicit bias. Focusing first on the history of peremptory challenges in Illinois, this article next looks to how the current state of the law can be reconciled with …

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, …

Torture, Ethics, Accountability?, David R. Katner

Loyola University Chicago Law Journal

Torture--including waterboarding--has been banned under international and domestic law in the United States dating back to World War II when the U.S. sought to hold Japanese interrogators accountable for waterboarding American prisoners of war. Following the 9/11 attacks on the World Trade Center and the Pentagon, the Bush administration sought legal justification from White House counsel to detain and initiate interrogation practices long considered to constitute acts of torture. After legal memos were drafted, psychologists and physicians along with nurses and other medical professionals engaged in waterboarding and other forms of abusive interrogation often resulting in no reliable intelligence from …

Amtrak: The Failure Of Passenger Preference And Politics Of Nonenforcement, David J. Konarske

Loyola University Chicago Law Journal

America's modern passenger rail system was born from a bargain between the federal government and the private railroad industry: The government would relieve the private railroads of their responsibility to provide passenger rail services, and in exchange, those companies would give preference to passenger-carrying Amtrak trains on their tracks. This was codified in federal statute. Yet, almost fifty years later, this preference is unenforced, Amtrak trains are routinely sidelined in favor of freight trains, and Amtrak struggles with on-time performance and financial sustainability. Even modest improvements in the percentage of passenger trains arriving on time would result in substantial savings …

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 …

Masking Free Speech: The First Amendment Implications Of Masks, Clothing, And Public Health, Roy S. Gutterman

Loyola University Chicago Law Journal

Regulations mandating the wearing of face coverings to prevent the spread of COVID-19 have encountered resistance on a variety of grounds. This article analyzes the constitutional status of mask requirements from a free-speech perspective, differentiating between the issue of written words or logos on a mask as a form of speech, and the ability to keep one’s face uncovered as a speech right in itself. It examines the similarities and distinctions between challenges to mask mandates and other First Amendment objections to government restrictions related to clothing (or the lack thereof)—from public nudity prohibitions, to motorcycle helmet laws, to regulations …

Introduction To Issue Two, Jack Hynes

Loyola University Chicago Law Journal

No abstract provided.