Law Commons^™

The Common Prosecutor, Melanie D. Wilson

Scholarly Articles

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, …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Washington and Lee Journal of Civil Rights and Social Justice

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal …

(Un)Conscious Judging, Elizabeth Thornburg

Washington and Lee Law Review

Fact inferences made by the trial judge are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Non-conscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This Article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson

Scholarly Articles

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …