Law Commons^™

Redistributing Justice, Benjamin Levin, Kate Levine

Faculty Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Policing, Stories, Problems, And Solutions, Katherine Mims Crocker

Popular Media

No abstract provided.

Sometimes They Don't Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault On Black Women?, Michelle S. Jacobs

UF Law Faculty Publications

In the eighteen months between March 2019 and August 2020, at least eight Black women were murdered by the police. Breonna Taylor was one of them. Officer Brett Hankison, one of the three officers who murdered Breonna Taylor, was eventually discharged from the Louisville Police Department. In the memo discharging him, the police chief cited behavior that amounted to an extreme indifference to the value of human life: Hankison blindly fired ten rounds into the home of Ms. Taylor's neighbor. Additionally, in the aftermath of Ms. Taylor's death, two women came forward and accused Hankison of sexually assaulting them while …

What “Good” Has Come From The “Good Faith” Exception?, Yasamin Elahi-Shirazi

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

The FourthAmendment protects the right of the people—us—against unreasonable searches, seizures, and warrantless conduct by government actors—police officers. The Supreme Court has added safeguards to this amendment, with the seminal cases of U.S. v. Weeks and Mapp v. Ohio. The Court created the exclusionary rule, which excludes evidence obtained in violation of the Fourth Amendment from criminal trials. Initially designed as a multifaceted legal mechanism to uphold judicial integrity, deter police misconduct, and serve as a remedy for those who are victims of constitutional violations. The deterrent value was meant to help protect the public at large—especially …

Reimagining Criminal Justice: What Good Has Come From The 'Good' Faith Exception?, Yasamin Elahi-Shirazi

Reimagining Criminal Justice

On March 13, 2020, Breonna Taylor settled into bed with her boyfriend Kenneth Walker after she finished working back-to-back shifts as an emergency room technician in Louisville, Kentucky. At around 12:30 a.m., the couple heard banging coming from their front door, they asked who was at the door. They heard no response. Suddenly, the front door “flies off its hinges” and armed men began to enter their apartment. Walker, a licensed gun owner, fired at the intruders, shooting one in the leg, to protect himself and Ms. Taylor from unknown intruders.

The intruders returned fire, with around thirty rounds, killing …

Federal (De)Funding Of Local Police, Stephen Rushin, Roger Mikalski

Faculty Publications & Other Works

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority …

Federal (De)Funding Of Local Police, Roger Michalski, Stephen Rushin

Faculty Publications & Other Works

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority …

Masculinity In Policing: The Need To Recruit More Women In American Police Departments Fall 2020 Symposium: Addressing The Crisis In Policing Today: Race, Masculinity, And Police Use Of Force In America, Stephen Rushin

Faculty Publications & Other Works

This Article, written as part of The George Washington Law Review Symposium on “Addressing the Crisis in Policing Today,” examines how American police departments can improve their recruitment and retention of women. Women currently make up a mere 13% of all police officers in the United States. This number has remained frustratingly low and stagnant for years.

This Article begins by considering the potentially harmful consequences of the underrepresentation of women in American policing. Some commentators have recently argued that the hiring of more women may, by itself, help transform policing. To evaluate this hypothesis, the first part of this …

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

The Wandering Officer, Ben Grunwald, John Rappaport

Faculty Scholarship

“Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. Policing experts hold disparate views about the extent and character of the wandering-officer phenomenon. Some insist that wandering officers are everywhere—possibly increasingly so—and that they’re dangerous. Others, however, maintain that critics cherry-pick rare and egregious anecdotes that distort broader realities. In the absence of systematic data, we simply do not know how common wandering officers are or how much of a threat they pose, nor can we know whether and how to address the issue through policy reform.

In this …

Smoke But No Fire: When Innocent People Are Wrongly Convicted Of Crimes That Never Happened, Jessica S. Henry

Department of Justice Studies Faculty Scholarship and Creative Works

Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Interrogation Parity, Stephen Rushin, Kate Levine

Faculty Publications & Other Works

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 …

Foreword—Police Misconduct And Kibbe V. City Of Springfield, Harris Freeman

Faculty Scholarship

The Law Review’s 2017 symposium, “Perspectives on Racial Justice in the Era of #BlackLivesMatter,” appropriately opened with a panel that addressed the ongoing challenge of combating police misconduct, as seen through the lens of Kibbe v. City of Springfield, a civil rights case that unfolded in Western Massachusetts and reached the United States Supreme Court thirty years ago. Kibbe presented the Court with the question of what the proper standard of liability should be for a municipality accused of a civil rights violation under 42 U.S.C. § 1983 for inadequately training a police officer who violates a person’s civil …

The Violent State: Black Women's Invisible Struggle Against Police Violence, Michelle S. Jacobs

UF Law Faculty Publications

Black women have a very specific history with the state and law enforcement that is not replicated among other women’s communities, and it is that unique situation that is the focus of this Article. Part I of this Article explores the historical roots of Black women’s interaction with the state. Part II of this Article is broken into two sections. The first will cover police killings of Black women. The second part of the section will explore the conditions under which Black women are physically assaulted by the police. Part III of the Article seeks to highlight when the police …

Wrongful Convictions And Their Causes: An Annotated Bibliography, Clanitra Stewart Nejdl

College of Law Faculty Publications

This Annotated Bibliography directs attorneys to relevant, select legal periodical articles written from 2010 to 2016 on wrongful convictions and their causes. The authors focus on five major causes that lead to wrongful convictions, as evidenced by the literature. Part I of the Annotated Bibliography focuses on resources that discuss false confessions as a cause of wrongful convictions. Part II discusses resources that address the role of police and prosecutorial practices, including misconduct, in wrongful convictions. Part III provides articles on eyewitness and jailhouse informant issues related to wrongful convictions. Part IV contains articles that deal with how forensic evidence …

De-Policing, Stephen Rushin, Griffin Sims Edwards

Faculty Publications & Other Works

Critics have long claimed that when the law regulates police behavior it inadvertently reduces officer aggressiveness, thereby increasing crime. This hypothesis has taken on new significance in recent years as prominent politicians and law enforcement leaders have argued that increased oversight of police officers in the wake of the events in Ferguson, Missouri has led to an increase in national crime rates. Using a panel of American law enforcement agencies and difference-in-difference regression analyses, this Article tests whether the introduction of public scrutiny or external regulation is associated with changes in crime rates. To do this, this Article relies on …

From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin

Faculty Publications & Other Works

The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or localities, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation's history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. …

Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit

Articles

This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

Scholarly Works

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

How The Black Lives Matter Movement Can Improve The Justice System, Paul H. Robinson

All Faculty Scholarship

This op-ed piece argues that because the criminal justice system's loss of moral credibility contributes to increased criminality and because blacks are disproportionately the victims of crimes, especially violent crimes, the most valuable contribution that the Black Lives Matter movement can make is not to tear down the system’s reputation but rather to propose and support reforms that will build it up, thereby improving its crime-control effectiveness and reducing black victimization.

Michael Brown, Eric Garner, And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

Violence-Related Police Crime Arrests In The United States, 2005-2011, Philip M. Stinson, Steven L. Brewer Jr, Joelle K. Bridges

Criminal Justice Faculty Publications

This study is a quantitative content analysis of news reports and court records on 3,328 violence-related arrest cases of 2,586 individual sworn law enforcement officers during the years 2005-2011. The arrested officers were employed by 1,445 nonfederal state, local, special, constable, tribal, and regional law enforcement agencies located in 805 counties and independent cities in 49 states and the District of Columbia. Binary logistic regression and classification and regression tree (CART) analyses were conducted to predict criminal conviction in violence-related police crime arrest cases. Finding indicate that conviction of police officers on one or more offenses charged are driven by …

Hands Up At Home: Militarized Masculinity And Police Officers Who Commit Intimate Partner Abuse, Leigh S. Goodmark

Faculty Scholarship

The deaths of Michael Brown and Eric Garner and the almost daily news stories about abusive and violent police conduct are currently prompting questions about the appropriate use of force by police officers. Moreover, the history of police brutality directed towards women is well documented. Most of that literature, however, captures the violence that police do in their public capacity, as officers of the state. This article examines the violence and abuse perpetrated by police in their private lives, against their intimate partners, although the public and private overlap significantly to the extent that the power and training provided to …

Federal Civil Rights Litigation Pursuant To 42 U.S.C. §1983 As A Correlate Of Police Misconduct, Philip M. Stinson, Steven L. Brewer Jr, Theresa M. Lanese, Mallorie A. Wilson

Criminal Justice Faculty Publications

Police officers acting in their official capacity are subject to being sued in federal court pursuant to 42 U.S.C. §1983 for violating constitutional rights under the color of law. Using data obtained in a larger study on police crime in the United States, names of more than 5,500 nonfederal sworn law enforcement officers who were arrested during the years 2005-2011 were checked against the civil case party master name index of the federal courts’ Public Access to Courts Electronic Records (PACER) system. Findings indicate that more than 20% of the police officers who were arrested for committing one or more …

Presumed Guilty: Innocence And The Death Penalty, Sean O'Brien

Faculty Works

DNA has really changed the way that defense lawyers and prosecutors think about wrongful convictions and about the criminal justice process. But it has not changed it enough.

There are two distinct sets of prisoners who have been declared innocent and released from prison. One consists of DNA exonerees that was developed through the efforts of the innocence projects. The other consists of people who have been on death row who have been exonerated. Only relatively few of the death row exonerations were accomplished with DNA technology. This article examines both lists and discusses a few lessons that we are …

Legislative Oversight Of Police: Lessons Learned From An Investigation Of Police Handling Of Demonstrations In Washington, D.C., Mary M. Cheh

GW Law Faculty Publications & Other Works

There are various ways to oversee police behavior including internal discipline, civilian review boards, civil law suits, and criminal prosecutions. These are important tools but an equally important but less examined mechanism is legislative oversight, and, in particular, the legislative investigation. A legislature may choose to review police policies concerning the use of surveillance, informants and undercover operatives, the implementation of community policing, the use of force, eradication of gang activity, and perhaps most prominently in the post 9/11 world, counter terrorism initiatives. All of these matters involve policy decisions at the departmental level and not actions taken at the …