Law Commons^™

Policing The Police: Personnel Management And Police Misconduct, Max Schanzenbach

Vanderbilt Law Review

Police misconduct is at the top of the public policy agenda, but there is surprisingly little understanding of how police personnel management policies affect police misconduct. Police-civilian interactions in large jurisdictions are, in principle at least, highly regulated. But these regulations are at least partially counteracted by union contracts and civil service regulations that constrain discipline and other personnel decisions, thereby limiting a city’s ability to manage its police force. This Essay analyzes police personnel management by bringing forth evidence from a variety of data sources on police personnel practices as well as integrating an existing, but relatively siloed, literature …

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

Criminal Justice Is Local: Why States Disregard Universal Jurisdiction For Human Rights Abuses, Jeremy A. Rabkin, Craig S. Lerner

Vanderbilt Journal of Transnational Law

A German court recently convicted a minor Syrian official of abuses committed in Syria's civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under "universal jurisdiction," allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged …

Confronting The Biased Algorithm: The Danger Of Admitting Facial Recognition Technology Results In The Courtroom, Gabrielle M. Haddad

Vanderbilt Journal of Entertainment & Technology Law

From unlocking an iPhone to Facebook “tags,” facial recognition technology has become increasingly commonplace in modern society. In the wake of the Black Lives Matter movement and call for police reform in the United States, it is important now more than ever to consider the implications of law enforcement’s use of facial recognition technology. A study from the National Institute of Standards and Technology found that facial recognition algorithms generated higher rates of false positives for Black faces—sometimes up to one hundred times more false identifications—than white faces. Given the embedded bias of this technology and its increased prevalence, the …

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Vanderbilt Law School Faculty Publications

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a …

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …

Disclosing Prosecutorial Misconduct, Jason Kreag

Vanderbilt Law Review

Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the criminal justice system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these reforms largely ignore the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors'Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure because of Brady misconduct. This Article proposes a new remedy …

Dangerousness, Disability, And Dna, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article honors three of Professor Arnold Loewy's articles. The first, published over thirty years ago, is entitled Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law is Predicated,' and the second is his 2009 article, The Two Faces of Insanity. In addition to commenting on these two articles about substantive criminal law, I can't resist also saying something about one of Professor Loewy's procedural pieces, A Proposal for the Universal Collection of DNA, published in 2015.

A theme that unites all three of these articles is that they appear to be quite radical, at least on …

How And Why Is The American Punishment System "Exceptional"?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, …

Judicial Politics And Decisionmaking: A New Approach, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Vanderbilt Law Review

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly one quarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This Article, the most comprehensive study ofjudicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. We learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

Federalism Anew, Sara Mayeux, Karen Tani

Vanderbilt Law School Faculty Publications

One of the most remarked-upon events of the recent past is the August 2014 death of a black teenager, Michael Brown, at the hands of a white police officer, Darren Wilson, in Ferguson, Missouri. Attention initially focused on individual actions and local circumstances, but quickly expanded to a broader set of injustices. Brown died just days before he was scheduled to start college, a significant accomplishment in his local context. His school district's graduation rate was less than 62 percent, compared to 96 percent in a wealthier district down the road, belying Missouri's constitutional commitments to public education and equal …

In Defense Of American Criminal Justice, J. H. Wilkinson, Iii

Vanderbilt Law Review

The American criminal justice system is on trial. A chorus of commentators-often but not exclusively in the legal academy-has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far-reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, "We …

Lessons From Inquisitorialism, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and wrongful sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process, judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented …

Sentencing And Prior Convictions: The Past, The Future, And The End Of The Prior-Conviction Exception To "Apprendi", Nancy J. King

Vanderbilt Law School Faculty Publications

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned. The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use …

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean E. Jackowitz, Daniel M. Bartels

Vanderbilt Law Review

The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. Those rules classically look to an offender's blameworthiness, taking account of both the seriousness of the harm or the evil of the offense and an offender's culpability and mental capacity. Courts generally examine these desert-based factors as they exist at the time of the offense. To some extent, modern crime-control theory sometimes prompts code drafters to look at circumstances beyond the offense itself, such as prior criminal record, on the grounds that …

The Case Of The Black-Gloved Rapist: Defining The Public Defender's Role In The California Courts, 1913-1948, Sara Mayeux

Vanderbilt Law School Faculty Publications

This essay traces [these] two competing visions of the public defender in California from 1913 to 1948, and examines how and why the second view ultimately prevailed, at least doctrinally. On the ground, some public defenders may have continued to see themselves primarily as public servants, and some trial judges may have endorsed this view. But in the 1940s, California appellate judges rejected the Progressive ideal of the public defender. They constructed the public defender as an opponent of the state, leaving intact (at least in theory) the American adversary system of criminal justice.

In so doing, they followed the …

The Criminalization Of Mental Illness: How Theoretical Failures Create Real Problems In The Criminal Justice System, Georgia L. Sims

Vanderbilt Law Review

When Andrea Yates drowned her five children, she believed she was preventing Satan from infiltrating their souls. Rusty Yates blamed both the mental health system and the criminal justice system for his wife's actions and also for her initial conviction. Andrea Yates suffered from post-partum depression and psychosis; had attempted suicide twice; had been hospitalized on several occasions for psychiatric treatment; and was found not guilty by reason of insanity in her 2006 retrial.' Although Yates likely will spend the rest of her life in a mental institution, she will receive mental health treatment throughout her time at the facility. …

Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison

Vanderbilt Law Review

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …

Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas …

Ruling Out The Rule Of Law, Kim Forde-Mazrui

Vanderbilt Law Review

Although criminal justice scholars continue to debate the overall value of the void-for-vagueness doctrine, broad consensus prevails that requiring crimes to be defined in specific terms reduces law enforcement discretion. A few scholars have questioned this assumption, but the conventional view remains dominant. This Article intends to resolve the question whether the void-for-vagueness doctrine really reduces police discretion. It focuses on traffic enforcement, a context in which laws are both specific and subject to discretionary enforcement. The Article concludes that specific rules do not constrain discretion unless judicial limits are placed either on the scope of activities that may be …

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law Review

The Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has prompted renewed interest in sentencing by jury in non-capital cases. Yet jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states-Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law School Faculty Publications

Jury sentencing in non-capital cases is one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states - Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today. It turns out that jury sentencing in …

Fundamental Retribution Error: Criminal Justice And The Social Psychology Of Blame, Donald A. Dripps

Vanderbilt Law Review

At least since the M'Naghten case of the 1840s,' Anglo- American criminal law has concerned itself closely, famously, and contentiously with the psychology of the accused. Another significant body of scholarship addresses the psychology of juries, and other valuable research has approached some of the rules of criminal evidence from the perspective of social and cognitive psychology. There has, however, yet to be a general investigation of what social cognition research might teach us about the criminal law's pervasive concern with blameworthiness.

This Article undertakes that investigation. It brings research on the psychology of social cognition to bear on the …

Crossing The (Blue) Line: Is The Criminal Justice System The Best Institution To Deal With Violence In Hockey?, John Timmer

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the criminal justice system is ill-equipped to, and thus should refrain from, prosecuting professional hockey players for violent acts committed during the course of play. Part II examines professional hockey and provides background regarding the nature of violence in the sport. Part III then discusses the history of prosecution of violent acts committed during professional hockey games, both in Canada and in the United States, providing some context for the type of violent actions that are prosecuted. Part IV examines some of the problems that arise in the prosecution of professional hockey players, including all applicable …

The Competency Conundrum: Problems Courts Have Faced In Applying Different Standards For Competency To Be Executed, John L. Farringer, Iv

Vanderbilt Law Review

Throughout Anglo-American legal history, there has been a general agreement, based on numerous rationales, that mentally incompetent inmates should not be executed for their crimes. The recurring problem, however, is how to define "incompetence" or "insanity." Legislatures and courts have sought to provide a common- sense definition, but in practice judges must confront highly technical terminology from the ever evolving field of psychiatry. Additionally, the definition must be flexible enough to apply to a variety of cases, while being universal enough to assure that all defendants are treated fairly and equally.

At hearings to determine a prisoner's competency to be …

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

Basic Rights And Anti-Terrorism Legislation, Kevin D. Kent

Vanderbilt Journal of Transnational Law

This Note addresses whether Britain's Criminal Justice (Terrorism and Conspiracy) Act (CJTCA), which permits police officer opinion testimony as to whether a terrorist suspect is a member of an illegal terrorist organization and allows adverse inferences to be drawn from that suspect's silence, can be reconciled with the fair trial provisions of the Human Rights Act (HRA). Part II of this Note describes the background of the CJTCA, concentrating on the reasons for its rushed passage and on the evidentiary changes it makes to trials of defendants charged with terrorist offenses. Part II describes the background and mechanics of the …

The American Criminal Jury, Nancy J. King

Vanderbilt Law School Faculty Publications

As juries become both less common and more expensive, some have questioned the wisdom of preserving the criminal jury in its present form. The benefits of the jury are difficult to quantify, but jury verdicts continue to earn widespread acceptance by the public and trial by jury remains a cherished right of most Americans. In any event, many basic features of the criminal jury in the United States cannot be modified without either constitutional amendment or radical reinterpretations of the Bill of Rights. Judges and legislators continue to tinker within constitutional confines, some hoping to improve the jury trial by …