Law Commons^™

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

Chesnutt Library Literacy Fellows Pathway: Ninth Cohort, Jennifer J. Marson

Chesnutt Fellows Information Literacy Projects

No abstract provided.

Literacy Fellow Ninth Cohort, 2016-2017--Paper Assignment (Final Report), Jennifer J. Marson

Chesnutt Fellows Information Literacy Projects

No abstract provided.

Quantifying The Contours Of Power: Chief Justice Roberts & Justice Kennedy In Criminal Justice Cases, Michael A. Mccall, Madhavi M. Mccall

Pace Law Review

This Article seeks to contribute to the debate with an empirical analysis of voting behavior in criminal justice cases decided during the first ten Terms of the Roberts Court era. The following section presents the study’s case selection and introduces the types of measures used to illuminate influence on the High Court (Part II). Court- and individual-level tendencies (Part III) identify potential spheres of influence occupied by Chief Justice Roberts and Justice Kennedy. These bases of judicial power are examined separately in Part IV (Chief Justice Roberts) and Part V (Justice Kennedy). Some possible implications of Justice Scalia’s death on …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar

University of Michigan Journal of Law Reform

A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.

Bias, Subjectivity, And Wrongful Conviction, Katherine Judson

University of Michigan Journal of Law Reform

A talk about bias, subjectivity and wrongful convictions.

Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg

University of Michigan Journal of Law Reform

A statistician's take on evidence of child abuse.

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Nevada Law Journal

No abstract provided.

Bail Nullification, Jocelyn Simonson

Michigan Law Review

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail …

Implicit Bias In Daily Perceptions And Legal Judgments, Keith B. Maddox, Samuel R. Sommers

University of Michigan Journal of Law Reform

In today’s demonstration, we explored the audience’s positive and negative associations with blacks and whites. The demonstration is an adaptation of the Implicit Association Test (www.projectimplicit.net), a computer-based task designed to explore mental connections between various concepts. Participants were presented with a list of concepts (stereotypically black and white names, pleasant and unpleasant concepts) in a column down the middle of a screen along with the response categories (black/white or Pleasant/Unpleasant) along the left and right sides. When reading a word, participants were asked to categorize it by slapping the knee (left or right) that corresponds to the category displayed …

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo

University of Michigan Journal of Law Reform

A transcript of the Question and Answer session during the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin

University of Michigan Journal of Law Reform

Keynote Address for the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Good Intentions, Unintended Consequences: How United States V. James Will Affect Federal Sexual Abuse Analysis, Kelsey Wong

Loyola of Los Angeles Law Review

No abstract provided.

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Stop Asking Which Came First, The Jail Or The Criminal - Start Reinvesting In Justice In Maryland, Bridget Lowrie

University of Baltimore Law Forum

The numerous cries for reform of the United States criminal justice system in recent time are not without merit based on an examination of the prison population. Despite violent crime being at record low rates in the United States, the prison population has expanded tremendously. On the global stage, the United States is the leader in incarceration rates. The United States has more people incarcerated than any other country, including China, Russia, and India. Looking at a local level, Maryland is not immune to this trend. In Maryland, while violent crime is on the decline, the amount of time an …

The Chow: Depictions Of The Criminal Justice System As A Character In Crime Fiction, Marianne Wesson

Publications

Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. …

Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram

Notre Dame Journal of Law, Ethics & Public Policy

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.

"Facts Are Stubborn Things": Protecting Due Process From Virulent Publicity, Benjamin Brafman, Darren Stakey

Touro Law Review

No abstract provided.

Leading With Conviction: The Transformative Role Of Formerly Incarcerated Leaders In Reducing Mass Incarceration, Susan Sturm, Haran Tae

Faculty Scholarship

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months. These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities. Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus …

The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe

Articles & Chapters

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging the failure to charge in entire classes of cases. Undercharging can similarly undermine theefficacy and legitimacy of the criminal justice system. While few have focused on this question in thedomestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and misses …

Retributive Justifications For Jail Diversion Of Individuals With Mental Disorder, E. Lea Johnston

UF Law Faculty Publications

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses. These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services. Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial. This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice. Key tenets of retributive theory are that punishments must not be inhumane and that …

Ministers Of Justice And Mass Incarceration, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a “law and order” perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped. …

Criminal Law As Family Law, Andrea L. Dennis

Scholarly Works

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in …

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

Punishment, Liberalism, And Public Reason, Chad Flanders

All Faculty Scholarship

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.