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Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Missouri’S Path Towards “A Meaningful Opportunity For Release.” Should Remedying Unconstitutional Sentences Permit Judicial Review Of Parole Board Decisions?, Kristen S. Spina

Saint Louis University Law Journal

No abstract provided.

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the …

Reducing The Dangers Of Future Dangerousness Testimony: Applying The Federal Rules Of Evidence To Capital Sentencing, Jaymes Fairfax-Columbo, David Dematteo

William & Mary Bill of Rights Journal

The United States Supreme Court has long held that the death penalty cannot be imposed arbitrarily, and that during sentencing in capital cases, jurors must be provided with guidelines to assist them in narrowing down the class of individuals for whom the death penalty is appropriate. Typically, this is accomplished through the presentation of aggravating and mitigating evidence. One aggravating factor is a capital offender’s future dangerousness, or the likelihood that the individual will engage in violent institutional misconduct while in prison. Future dangerousness may be assessed using a variety of measures; Hare’s Psychopathy Checklist-Revised (PCL-R), a measure of personality …

Post-Sentencing Appellate Waivers, Kevin Bennardo

University of Michigan Journal of Law Reform

A sentencing appellate waiver is a criminal defendant’s promise not to appeal her sentence. These provisions routinely appear in federal defendants’ plea agreements. With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the waiver’s scope. Using models of judicial behavior and empirical studies, this Article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process. As a solution, the Article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer

Michigan Law Review

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …

Decoupling Federal Offense Guidelines From Statutory Limits On Sentencing , Kevin Bernardo

Missouri Law Review

This Article discusses the sensibility of each of these three options. Part II sets forth a hypothetical controlled substance offense to better illustrate the choices faced by the Commission. Part III recounts approaches that the Commission has actually adopted in incorporating statutory limits into the Guidelines. Part IV addresses the goals of guideline sentencing and concludes that the Guidelines’ structure should be primarily driven by actual fairness concerns. Applying actual fairness as the overriding concern, Part V concludes that statutory limits should not be incorporated into an offense guideline when some offenders subject to the guideline will not be subject …

Ring V. Arizona: The Sixth And Eighth Amendments Collide: Out Of The Wreckage Emerges A Constitutional Safeguard For Capital Defendants, Jason E. Barsanti

Pepperdine Law Review

No abstract provided.

Raising The Bar: How Rompilla V. Beard Represents The Court's Increasing Efforts To Impose Stricter Standards For Defense Lawyering In Capital Cases, Whitney Cawley

Pepperdine Law Review

No abstract provided.

Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.

William & Mary Bill of Rights Journal

No abstract provided.

A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar

Golden Gate University Law Review

In Kenna v. United States District Court, the Ninth Circuit held that under the Crime Victim's Rights Act ("CYRA"), a crime victim's right to be "reasonably heard" during sentencing was not limited to written impact statements, but included the right to allocute at any public proceeding. This was an issue of first impression in the Ninth Circuit. "No court of appeals had addressed the scope of this particular CVRA right." Two district courts had considered this issue and had reached contrary decisions. The Ninth Circuit agreed with the United States District Court for the District of Utah that a plausible …

Violence In The Courts: The Ninth Circuit's Attempt To Grapple With And Pin Down What Is A "Crime Of Violence" In United States V. Serna, Daniel S. Cho

Golden Gate University Law Review

This Note examines the limitations of the strict categorical approach; the method by which sentencing courts and courts of review determine whether an offense is a crime of violence for sentence enhancement purposes. Part I of this Note examines the "crime of violence" sentence enhancement under the Federal Sentencing Guidelines ("Guidelines"). Part II examines the Ninth Circuit's analysis of what constitutes a crime of violence in United States v. Serna. Part III proposes that the types of sources available to sentencing courts when analyzing whether an offense is a violent crime should be expanded based on Justice O'Connor's dissenting opinion …

Unconstitutional Exploitation Of Delegated Authority: How To Deter Prosecutors From Using "Substantial Assistance" To Defeat The Intent Of Federal Sentencing Laws, Adriano Hrvatin

Golden Gate University Law Review

This Comment addresses whether the intent of the federal sentencing system is defeated when prosecutors reward high-level drug offenders with lenient sentences in exchange for testimony against less culpable co-conspirators. This Comment argues that prosecutors violate separation-of-powers principles when they move for downward departures on behalf of kingpins who provide substantial assistance in a case against less culpable co-defendants because Congress did not authorize such an exercise of prosecutorial discretion. In such instances where the intent of Congress is defeated, the prosecutor is essentially making law and thereby encroaching upon the law-making function of Congress. To cure this constitutional abuse …

Criminal Procedure - United States V. Buckland, Brian Feinberg

Golden Gate University Law Review

In United States v. Buckland, the defendant appealed his drug conviction, arguing that the penalty provisions of the federal drug statute under which he was convicted and sentenced was facially unconstitutional. In light of the United States Supreme Court's ruling in Apprendi v. New Jersey, the primary issue was whether Calvin Wayne Buckland's sentence could be enhanced without the enhancement factor, in this case the quantity of the drugs he was responsible for, being determined by a jury. After rehearing the case en banc, the court concluded that the statute was not unconstitutional on its face. However, the court concluded …

United States V. Ruiz: Are Plea Agreements Conditioned On Brady Waivers Unconstitutional?, Shane Cahill

Golden Gate University Law Review

In United States u. Ruiz, the Ninth Circuit ruled that such waivers are unconstitutional, violating the principle that defendants in criminal cases must knowingly and voluntarily plead guilty for the plea to be constitutionally valid. The purpose of this article is to discuss the law leading up to the Ninth Circuit's ruling in Ruiz, to examine the court's ruling itself, and to analyze the impact this decision could have on plea bargaining, an integral part of the criminal justice system. In Part II, this Note discusses Ruiz's facts and procedural history. Part III, section A outlines the prosecution's duty to …

Criminal Procedure - United States V. Nordby, Adriano Hrvatin

Golden Gate University Law Review

The Nordby court held that a finding of drug quantity under 21 U.S.C. § 841(b) by the district court at sentencing pursuant to a preponderance of the evidence violated the Due Process Clause of the Fifth Amendment and the notice and jury-trial guarantees of the Sixth Amendment when drug quantity was used to increase the prescribed statutory maximum penalty. In requiring that drug quantity be submitted to the jury and proved beyond a reasonable doubt, the Ninth Circuit overruled nearly fifteen years of its own precedent.

From Playpens To Prisons: What The Gang Violence And Juvenile Crime Prevention Act Of 1998 Does To California's Juvenile Justice System And Reasons To Repeal It, Sara Raymond

Golden Gate University Law Review

This comment will explore the most significant changes that the Gang Violence and Juvenile Crime Prevention Act (GVJCPA) made to California's juvenile justice system. It will also discuss and propose alternative methods to curb juvenile crime. Part II will examine the juvenile justice system, including the context in which it was created, and juvenile crime across the country. It will then discuss how courts, legislatures, and local governments have confronted the changing nature of juvenile crime, focusing on efforts in California. Part II will also include an introduction to the GVJCPA. Part III will discuss the most important changes that …

Criminal Procedure - Macfarlane V. Walter, Jennifer Benesis

Golden Gate University Law Review

In Macfarlane v. Walter, the United States Court of Appeals for the Ninth Circuit held that Washington state and county early-release credit systems for prisoners violate the equal protection clause of the United States Constitution. The early-release credit systems unconstitutionally provide fewer early-release credits to pre-trial detainees who cannot afford to post bail than to similarly-situated prisoners who post bail and serve their entire sentences after trial in state prison. The court held that awarding fewer good behavior credits for time served in county jail than for time served in state prison denies equal protection of the law to pre-trial …

The Dilemma Of Difference: Race As A Sentencing Factor, Palcido G. Gomez

Golden Gate University Law Review

This paper addresses the dilemma of difference, specifically that associated with the race of an offender, as it affects criminal sentencing under the federal sentencing guidelines mandated by the Sentencing Reform Act. I argue that federal judges should continue to consider an offender's race as a mitigating factor when imposing criminal sentences, despite language to the contrary in the guidelines and the enabling statute.

Criminal Procedure - United States V. Roe: Child Abuse Warrants Departure From Sentencing Guidelines In Extraordinary Circumstances, Sara Vukson Winter

Golden Gate University Law Review

No abstract provided.

Criminal Procedure - United States V. Restrepo: Uncharged Conduct Now Considered In The Ninth Circuit Under Federal Sentencing Guidelines, Matthew A. Goodin

Golden Gate University Law Review

In United States v. Restrepo, the Ninth Circuit, on a petition for rehearing, held that conduct of which the defendant was neither charged nor convicted could be taken into consideration at the defendant's sentencing hearing. The court reasoned that this interpretation is consistent with the clear intent of the United States Sentencing Commission and the Federal Sentencing Guidelines. The Ninth Circuit also held that when considering uncharged conduct at defendant's post-conviction sentencing hearing, a preponderance of the evidence standard is sufficient for due process concerns. When used to enhance a sentence, however, a more demanding interpretation of the standard is …

Survey: Women And California Law, Linda C. Kramer, T. A. Graudin, Donna Cobe Beekman, Kathy A. Alfieri

Golden Gate University Law Review

This survey of California law, a regular feature of the Women's Law Forum, summarizes recent California Supreme Court and Court of Appeal decisions of special importance to women. A briefanalysis of the issues pertinent to women raised in each case is provided.

Panel: Sentencing

Golden Gate University Law Review

Of all the decisions facing trial judges, those surrounding sentencing are the most difficult. Public opinion focuses on the sentencing of criminal defendants - particularly those defendants whose trials have received media attention - and public outrage results from what is perceived as a "light" sentence. Judges are called upon to be "tougher" on criminals, and women judges in particular are perceived as being too lenient. The NAWJ, in recognition of the difficulty faced by all judges in the area of sentencing, presented the panel on Sentencing to share and discuss viewpoints on this issue.

The Crime Of Criminal Sentencing Based On Rehabilitation, Louis R. Lopez

Golden Gate University Law Review

A lively debate began in the late 1970's on the topic of criminal sentencing. A major attack was launched on the indeterminate sentence and its companion concepts of probation and parole. Changes in state law on indeterminate sentencing were made but some writers rose to defend the indeterminate sentence and its justification - the rehabilitative theory of punishment. It is not clear how long and intense the struggle will be before the rehabilitative (a.k.a. reform, treatment) theory is put to rest or at least put in proper perspective; it should exist not as a basis for a sentencing plan but …

"Once Victim, Always Victim": Compensated Individuals Under The Amended Sentencing Guidelines On Fraud, Jacqueline Harrington

Michigan Law Review

Until recently, courts disagreed over whether individuals who were compensated by a third party such as a bank or insurance company ought to count as victims for purposes of the multiple-victim sentencing enhancement in the Federal Sentencing Guidelines on Fraud. The most recent Amendments to the Guidelines resolve this split, permitting compensated individuals to be counted as victims where their identity was used in the commission of the fraud. However, the new Guidelines do not resolve a separate split, likely to become more divisive under the new Guidelines, over whether both compensated individuals and their compensators can simultaneously be treated …

Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd

William & Mary Environmental Law and Policy Review

No abstract provided.

The Jurisprudence Of Punishment, Kyron Huigens

William & Mary Law Review

No abstract provided.