Civil Rights and Discrimination Commons^™

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Peacemaking & Provocation: A Response To Professor Tracey Jean Boisseau, Dan Subotnik

Scholarly Works

No abstract provided.

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Publications

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices--and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors--contribute to the staggering and disproportionate incarceration of black …

The Prisoners' Property Dilemma: The Proper Approach To Determine Prisoners' Protected Property Interests After Sandin And Castle Rock, Corbin R. Kennelly

Georgia Law Review

The Proper approach to determine when prisoners have
property interests protected by the Due Process Clause is
currently uncertain. The Supreme Court addressed
prisoners' liberty interests in Sandin v. Conner, but lower
courts have split over whether to apply the Sandin test to
prisoners' property interests. Further complicating
matters, the Supreme Court recently addressed property
interests generally in Town of Castle Rock v. Gonzales.
There, the Court seemed to add additional hurdles to the
finding of protected property interests: A statute must
clearly indicate that it gives rise to an entitlement; the
entitlement must have an ascertainable monetary value;
and, …

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.

Alvarado Revisited: A Missing Element In Alaska’S Quest To Provide Impartial Juries For Rural Alaskans, Jeff D. May

Alaska Law Review

In Alvarado v. State, the Alaska Supreme Court declared that an impartial jury is a cross section of the community and that the community where the events at issue transpired must be represented in the jury. This decision spurred changes to jury selection procedures and the creation of Criminal Rule 18, an effort to ensure defendants from remote villages are judged by a jury representative of these rural areas. The Alaska Court of Appeals recently addressed an issue of first impression regarding the application of Criminal Rule 18. In Joseph v. State, the defendant was convicted of murdering his …

Educating Prosecutors And Supreme Court Justices About Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author reviews the Supreme Court decision in Connick v. Thompson and provides a course outline, including problems, for training prosecutors on their duty to disclose materially favorable evidence to the defendant under Brady v. Maryland.

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

The Consequences Of Criminal Convictions For Misdemeanor Or Felony Offenses, David P. Baugh

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

“Like Wolves In Sheep’S Clothing”: Combating Racial Bias In Washington State’S Criminal Justice System, Krista L. Nelson, Jacob J. Stender

Seattle University Law Review

Despite their differences, both the majority and concurring opinions in Monday present new ways to address prosecutorial misconduct, deter the injection of racial bias into courtroom proceedings, and create substantively similar outcomes. Part II of this Note discusses the traditional prosecutorial misconduct test in Washington State, as well as the rules articulated by the Monday majority and concurrence. Part III discusses the implications of both the majority and concurring opinions, the primary differences in their approaches to deterrence, the degree of racial bias they require to warrant reversal of a conviction, and the discretion they afford the judiciary. Part III …

The Impact Of Implicit Racial Bias On The Exercise Of Prosecutorial Discretion, Robert J. Smith, Justin D. Levinson

Seattle University Law Review

The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how …

Slavery Revisited In Penal Plantation Labor, Andrea C. Armstrong

Seattle University Law Review

This Article argues that society must critically examine the types of labor we require our inmates to perform and prohibit the imposition of slavery, even when the enslaved is an inmate. Part II focuses on the text and history of Section 1 of the Thirteenth Amendment11 and argues that the Amendment’s exception allowing forced inmate labor is not as broad as it first appears. Part III examines the Eighth Amendment and how the imposition of slave status on inmates should be considered cruel and unusual punishment. Lastly, Part IV applies these concepts to the history and operation of one such …

“If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, And The Right To A Fair Trial In State V. Monday, Michael Callahan

Seattle University Law Review

This Note argues that of the three opinions from Monday, Washington state courts should follow Chief Justice Madsen’s concurring opinion. The Monday decision also raises three questions that none of the opinions adequately answer: who does Monday apply to, what conduct does Monday forbid, and what is the legal source of the rules from Monday? The court will have to answer these questions in the future to determine the scope of its new rules. Part II of this Note discusses how Washington courts previously addressed the issue of prosecutorial misconduct and appeals to racial bias in trials. Part …

Criminal Procedure And The Racial Profiling Issue For Professor Gates And Sergeant Crowley, L. Darnell Weeden

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

Tangled Up In Law: The Jurisprudence Of Bob Dylan, Michael L. Perlin

Articles & Chapters

A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek …

Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson

Cornell Law Faculty Publications

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Mapp V. Ohio Revisited: A Law Clerk's Diary, Polly J. Price

Faculty Articles

The 1960 Supreme Court Term laid the groundwork for the subsequent revolution in the relationship between state and federal law accomplished by the Supreme Court under Chief Justice Earl Warren. The "most famous search and seizure case in American history" - Mapp v. Ohio - would be decided that Term. Mapp held that the Fourth Amendment's protection against "unreasonable searches and seizures" required the exclusion of evidence found through an illegal search by state and local police officers, extending to the states a rule that had previously applied only to federal law enforcement. Mapp became a pivotal chapter in the …

How To Save Superman From A Death Sentence: Could It Be North Carolina's Racial Justice Act?, Saren Stiegel

Public Interest Law Reporter

No abstract provided.

Racializing Disability, Disabling Race: Policing Race And Mental Status, Camille Nelson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …