Law Commons^™

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …

Victims, Right?, Anna Roberts

Faculty Publications

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

Convictions As Guilt, Anna Roberts

Faculty Publications

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …

Categorical Nonuniformity, Sheldon Evans

Faculty Publications

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

Arrests As Guilt, Anna Roberts

Faculty Publications

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrests in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Faculty Publications

(Excerpt)

In “Opioid Policing,” Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this …

Discipline And Policing, Kate Levine

Faculty Publications

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is …

The Myth Of Preliminary Due Process For Misdemeanor Prosecutions In New York, Anjali Pathmanathan

Faculty Publications

The existing criminal procedure laws of New York do not afford the misdemeanor accused any meaningful preliminary opportunity to fight the substantiation of the accusations against them. This is problematic given that a criminal prosecution can have extreme consequences on an individual’s life, including the loss of liberty, employment, housing, child custody or freedom from immigration removal proceedings. This article therefore analyzes the weaknesses in the existing criminal procedure laws for these prosecutions, and assesses how historical protections dissolved into the myth of preliminary due process for misdemeanor cases today. Ultimately, since the current procedures are ineffective in protecting against …

Interrogation Parity, Kate Levine, Stephen Rushin

Faculty Publications

This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create …

We Need To Talk About Police Disciplinary Records, Kate Levine

Faculty Publications

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who …

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

Dismissals As Justice, Anna Roberts

Faculty Publications

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

How We Prosecute The Police, Kate Levine

Faculty Publications

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host of undertheorized questions about how the police are treated when they become the subject of criminal prosecutions.

This essay is part of a larger project wherein I examine the ways in which criminal procedure is different for the police than other suspects. Here, my focus …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked …

Police Suspects, Kate Levine

Faculty Publications

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated …

Reclaiming The Importance Of The Defendant's Testimony: Prior Conviction Impeachment And The Fight Against Implicit Stereotyping, Anna Roberts

Faculty Publications

Implicit courtroom stereotypes are an urgent problem. When trial defendants are African American, as is disproportionately the case, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, hostility, aggression, immorality, and guilt. Implicit-social-cognition research reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life.

Yet courts frequently chill defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a …

Conviction By Prior Impeachment, Anna Roberts

Faculty Publications

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed. (1) it relies on assumptions belied by data; (2) it has devastating impacts on individual trials; and (3) it contributes to many of the criminal justice system's most urgent dysfunctions. Yet critiques of the practice are often paired with resignation. Abolition is thought too ambitious because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Publications

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach—unequal allocation of peremptory challenges to prosecution and defense—and yet many state legislatures have recently abandoned asymmetry, with some legislators declaring …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Publications

This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. In admitting convictions as impeachment evidence, courts are wrongly assuming that such convictions are necessarily reliable indicators of relative culpability. Courts assume that convictions are the product of a fair fight, that they demonstrate relative culpability, and that they connote moral culpability. But current prosecutorial practice and other data undermine each of these assumptions. Accordingly, this Article proposes that before a conviction is used for impeachment, there should be an assessment of the extent to …

Prosecutorial Discretion In The Shadow Of Advisory Guidelines And Mandatory Minimums, Michael A. Simons

Faculty Publications

(Excerpt)

Imagine the following rather run-of-the-mill crime spree:

Three young men, ranging in age from eighteen to twenty and without significant criminal histories, get together to rob a convenience store in New York City. They take an unloaded an inoperable gun, go into the store, point the gun at the clerk behind the counter, and take a few hundred dollars from the cash register. Flush with success, they decide to do it again, this time at a jewelry store down the block. One of the young men points the unloaded gun at the store employees, another stands guard by the …

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

Disparate Effects In The Criminal Justice System: A Response To Randall Kennedy's Comment, Janai S. Nelson

Faculty Publications

For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy's The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), …

The Hearsay Exception For Public Records In Federal Criminal Trials, Vincent C. Alexander

Faculty Publications

The hearsay exception for "public records" was recognized at common law and has been further developed in most jurisdictions by statute. The reliability of public records is said to derive from the presumption of regularity and accuracy that attends the recording of events by public officials. As with the hearsay exception for recordsmade in the regular course of a private business, the reliability of many public records is enhanced by the routine and repetitive circumstancesunder which such records are made. An additional justificationfor the admission of public records is public convenience: If government employees are continually required to testify in …