Criminal Law Commons^™

Collateral Consequences And Criminal Justice: Future Policy And Constitutional Directions

Marquette Law Review

National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. …

Hidden In Plain View: Juries And The Implicit Credibility Given To Police Testimony, Jonathan M. Warren

DePaul Journal for Social Justice

No abstract provided.

The Criminal Justice System And Latinos In An Emerging Latino Area, Betina Cutaia Wilkinson

Latino Public Policy

The topic of my study is Latinos’ attitudes and experiences with the criminal justice system in an emerging Latino area. There is an extensive amount of research on African Americans’ experiences and views of the criminal justice system yet our knowledge of Latinos’ experiences with the criminal justice system is quite scant. Still, a few studies have provided some foundation for our understanding of this topic. We know that immigrant policing is associated with Latinos’ reduced trust in government agencies and its programs (Cruz Nichols et al. 2018a). Restrictive immigration policies negatively impact Latinos’ physical and mental health (Cruz Nichols …

Non-Merit-Based Tests Have No Merit: Restoring District Court Discretion Under § 1915(E)(1), John R. Fitzgerald

Notre Dame Law Review

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding § 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) …

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting forth a theory of …

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Criminal Employment Law, Benjamain Levin

Cardozo Law Review

This Article diagnoses a phenomenon, "criminal employment law," which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Reforming Policing, André Douglas Pond Cummings

Law Faculty Scholarship

Law enforcement killing of unarmed black men and police brutality visited upon minority citizens continues to confound the United States. Despite protests, clarion calls for reform, admitted training shortcomings and deficiencies among U.S. law enforcement officers, conferences, summits, and movements to reform policing, the solution to ending undisciplined police violence and the hostile killings of unarmed minority individuals at the hands of U.S. police seems to elude us. Why should this be? The United States is home to some of the most creative, innovative, pathmarking, and course-changing thinkers the world has ever known. This challenge — police killing of unarmed …

287(G) Agreements In The Trump Era, Huyen Pham

Faculty Scholarship

Articulated as a priority in President Trump’s executive orders, his administration has forcefully pushed to sign more 287(g) agreements (and more aggressive forms of those agreements) with local law enforcement agencies (LEAs). In the summer of 2017, the administration signed eighteen new agreements in the state of Texas alone. At the end of 2017, there were at least thirty-eight other LEAs interested in joining the program. Once these agreements come online, the result will be more local law enforcement officers deputized to enforce immigration laws than have ever existed in the history of the 287(g) program.

What are the implications …

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …

Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane

Utah Law Review

The families of Eric Garner, Laquan McDonald, Freddie Gray, and Walter Scott have obtained multimillion dollar settlements from the cities in which their family members lost their lives. This Article identifies and labels these settlements as a legal response unique to high-profile policeinvolved deaths: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. Section 1983 litigation rather than litigation itself to compensate police-involved shooting victims’ family members. This Article explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal of accelerated civil …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

American Hypocrisy: How The United States' System Of Mass Incarceration And Police Brutality Fail To Comply With Its Obligations Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, R. Danielle Burnette

Georgia Journal of International & Comparative Law

No abstract provided.

Rehabilitated Ruins, Abigail Cathryn Gwin

Senior Honors Projects, 2010-2019

Rehabilitated Ruins proposes an alternative to the American Prison System, by offering true-rehabilitation based programs. These programs include: specialized counseling, family visitation, leisure activities, places of learning...

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

The #Metoo Movement: An Invitation For Feminist Critique Of Rape Crisis Framing, Jamie R. Abrams

University of Richmond Law Review

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming