Law Commons^™

Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith

Congressional and Other Testimony

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

A World Without Prosecutors, Jeffrey Bellin

Faculty Publications

Bennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”

[...]

Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly …

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …

Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

Courts Without Court, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

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, …

Expanded Criminal Defense Lawyering, Jenny Roberts, Ronald Wright

Articles in Law Reviews & Other Academic Journals

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney’s work have expanded to …

The Imagined Juror: How Hypothetical Juries Influence Federal Prosecutors (Book Review), Jeffrey Bellin

Popular Media

No abstract provided.

Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt

Judicature International

No abstract provided.

Qualifying Prosecutorial Immunity Through Brady Claims, Paul Heaton, Brian M. Murray, Jon B. Gould

All Faculty Scholarship

This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice …

Criminal Court System Failures During Covid-19: An Empirical Study, Cynthia Alkon

Faculty Scholarship

How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the …

The Effects Of True Crime Media Consumption On Jurors’ Criminal Justice Orientations, Kendall Miller

Masters Theses & Specialist Projects

This study sought to determine the relationship between True Crime Media (TCM) or pretrial publicity (PTP) consumption and jurors' criminal justice orientations. This study also looked at dispositional empathy, right-wing authoritarianism, the need for affect, and the need for cognition as potential moderators. It was hypothesized that the more TCM and PTP consumed, the more participants will lean toward crime control ideologies. It was also hypothesized that the more TCM and PTP consumed, the higher participants would score on right-wing authoritarian viewpoints, on dispositional empathy, and on need for cognition. Participants were presented with a screening question of, "Do you …

Guidry V. State, 138 Nev. Adv. Op. 39 (June 2, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court of Nevada, reviewing the case de novo, considered whether the errors committed by the prosecution at trial entitled the appellant to relief from her convictions. The Court held that the ambiguous jury instruction on the count of second-degree murder was a prejudicial error, warranting a reversal of the conviction. As to the charges of robbery, grand larceny, and leaving the scene, for which the appellant was also convicted, claims of prosecutorial misconduct and challenges to the sufficiency of evidence were not sufficient to warrant a reversal. Given the reversal on the second-degree murder charge, however, the Court …

Bennett V. State, 138 Nev. Adv. Op. 29 (Apr. 28, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

Years after a jury sentenced Bennett to death, newly discovered evidence was presented. This case thoroughly explains whether a new evidentiary hearing must be granted. The statutory scheme providing for a petition to establish factual innocence is a relatively new addition to Nevada law.[1] Bennett v. State provided an opportunity to address the statutory provisions that guided the district court’s decision whether to order a hearing on this type of petition. The Court clarified two considerations relevant to the pleading requirements a petition must satisfy under NRS 34.960(2)(b): (1) a petition may rely on a witness’s recantation of trial …

Defense Counsel's Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts

Faculty Scholarship

No abstract provided.

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of …

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

Freedom From Speech, Mary Anne Franks

Articles

The importance of freedom of speech in a democratic society is usually taken as a given, but freedom from speech is no less important in safeguarding the values of truth, autonomy, and democracy. Freedom from speech includes both the right of the individual to not be forced to speak and the freedom to avoid the speech of others. This essay attempts to highlight the significance of freedom from speech in order to clarify the importance of the First Amendment right against compelled speech; provide an explanation for when the right of free speech yields to other rights; and offer a …

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …

The Influence Of A Showup Identification On A Subsequent Witness Description, Kelsey Lynne Hess

FIU Electronic Theses and Dissertations

Showups account for 30%-77% of initial identification procedures conducted by police (Flowe et al., 2001; Gonzalez et al., 1993; McQuiston & Malpass, 2001). Unlike lineups, showups are typically administered within a few hours of the crime event. The administration of a showup, due to its timing, is likely to precede a more formal police interview. The showup may introduce new characteristics of the suspect’s physical appearance to the witness. Any new characteristics inconsistent with the perpetrator’s appearance at the crime can be considered misinformation, which has the potential to contaminate witness recall. Although the contaminating effects of a showup have …

24th Annual Open Government Summit 2022, Roger Williams University School Of Law, Rhode Island Office Of The Attorney General

School of Law Conferences, Lectures & Events

No abstract provided.

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

Problematic Ai — When Should We Use It?, Fredric Lederer

Popular Media

No abstract provided.

Locating And Situating Justice Pal: Twail, International Criminal Tribunals, And Judicial Powers, Sujith Xavier

Law Publications

This paper brings forward Justice Pal's dissenting opinion at the Tokyo Tribunal to add to Third World Approaches to International Law (TWAIL) literature on international criminal law and the rules of evidence and procedure. It is part of a TWAIL effort to scrutinize the everyday practices of international prosecutions through procedural and evidentiary rules. By locating and situating Justice Pal's reasoning within the broader academic literature on dissents in international criminal law, it is possible to illustrate how and why Justice Pal's views were obscured as a relevant dissent. From this vantage point, this paper pursues Justice Pal's legacy as …

Combating Recidivism, Shaylin Daley

Senior Honors Projects

SHAYLIN DALEY (Psychology) Combating Recidivism Sponsor: Lisa Holley (Political Science) Many people believe that criminals cannot be helped. It is evident that at least some of society shuns people who break laws and have negative views about the amount of money spent on detaining inmates. Thousands of individuals are released from United States prisons a day. Many of these individuals have no plan in place for their return home and are sent into the streets with nothing except for a jail ID. Most of these people will end up returning to prison. A good sum of these people face problems …

Examining Legal Financial Obligations In Washington State, Bryan Lewis

PPPA Paper Prize

After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

The Crime Of Sedition: At The Crossroads Of Reform And Resurgence, Adam M. Smith, Charlene Yim, Marryum Kahloon, Human Rights Institute

Human Rights Institute

The offense of “sedition” — often characterized as criminalizing the incitement of rebellion against the government — is an archaic crime that is frequently used to target political speech. Introduced in the sixteenth century in England specifically to suppress dissent, sedition laws spread through the British colonies. These laws still persist in some legal systems, and while there are reforms underway in some of those jurisdictions, in a few outliers, the offense continues to be prosecuted — and in some there has been a resurgence in cases.

Sedition laws have been criticized by the United Nations (“U.N.”), human rights experts, …

Socialist Republic Of Vietnam V. Pham Thi Doan Trang, David Mccraw, Human Rights Institute

Human Rights Institute

On the night of October 6, 2020, at the conclusion of a virtual human rights meeting between the governments of the United States of America and Vietnam, Vietnamese police arrested the journalist and human rights activist Pham Thi Doan Trang at her home in Hanoi. Ms. Trang was arrested and detained for allegedly “conducting propaganda against the Socialist Republic of Vietnam” and “making, storing, spreading information, materials, items for the purpose of opposing the State of Socialist Republic of Vietnam” — two of the most notorious of Vietnam’s fifteen national security offenses.

It would be a full year — during …

#Wetoo, Kimberly Kessler Ferzan

All Faculty Scholarship

The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in …

Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …