Criminal Procedure Commons^™

Can The Pursuit Of Truth Reconcile With The Principle Of Minimizing False Convictions?, Doron Menashe

Cardozo Journal of Conflict Resolution

No abstract provided.

Arguing The Algorithm: Pretrial Risk Assessment And The Zealous Defender, Julian Adler, Sarah Picard, Caitlin Flood

Cardozo Journal of Conflict Resolution

This article examines the growing use of algorithmic pretrial risk assessment tools in the United States as a response to the systemic inequities of cash bail and mass incarceration. While proponents argue that these tools offer objective, data-driven alternatives to judicial discretion, critics highlight their potential to reinforce racial and economic disparities. Amid this contentious debate, the authors call attention to the underexplored role of public defenders in mitigating the harms—and maximizing the decarcerative potential—of risk assessment algorithms. Drawing on examples from New York and New Jersey, the article outlines four key strategies for defenders: demanding transparency in algorithm design, …

Arbitrating With The Mafia: Why Civil Rico Statutes Are Improperly Used And How Class Action Arbitration May Provide Just Compensation For Forgotten Victims, Max Steinberg

Cardozo Journal of Conflict Resolution

From the nineteenth century onward, the United States has been overwhelmed by the rise of organized crime. For generations, criminal organizations have "infiltrated the social and economic fabric" of society and committed heinous crimes in almost every way imaginable. For decades, pop culture and Hollywood have been infatuated with criminal organizations. Movies, television shows, books, and podcasts have portrayed these organizations as interesting and complex entities. In most cinematic programs, the leaders of these mob organizations are the protagonists. Hollywood may portray fictional mob bosses as such, but in reality, their organizations often contain ruthless murderers. What seems to get …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Brief Of Amici Curiae Ohio State Bar Association And Academic Experts In Support Of Defendant-Appellee Basim Barnes In State Of Ohio V. Basim Barnes, John P. Sahl

Akron Law Faculty Publications

This amicus curiae brief, submitted by the Ohio State Bar Association and a group of legal academic experts including Professor Jack P. Sahl, supports the position of Defendant-Appellee Basim Barnes before the Ohio Supreme Court. The brief addresses significant constitutional and professional responsibility concerns related to prosecutorial conduct and the integrity of the legal process. Specifically, it examines the potential misuse of judicial and prosecutorial discretion in criminal proceedings and its implications for defendants’ rights, due process, and public trust in the justice system. The amici argue for the protection of procedural fairness, adherence to ethical standards, and restraint in …

In The Shadow Of Shular: Conduct Can Unify The Disjointed Categorical Approaches, Sheldon Evans

Scholarship@WashULaw

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing …

Criminal Law In Crisis, Benjamin Levin

Scholarship@WashULaw

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

The Lost Promise Of Lambert V. California, Cynthia Alkon

Faculty Scholarship

This Article will start with a brief overview of the Lambert case. It will then discuss the differing views on how to interpret this relatively short case. Next, it will review the cases citing to Lambert that illustrate the narrow approach that courts have taken when applying this case. Finally, it will offer some thoughts on how Lambert could have played a role in preventing some of the excesses of mass incarceration, but failed.

Police Violence And The African-American Procedural Habitus, Trevor George Gardner

Scholarship@WashULaw

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as …

What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian …

Perfecting Issue Preservation, Daniel Epps

Scholarship@WashULaw

In his article, “Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process,” Darryl Brown challenges the venerable rule that a defendant must preserve objections to erroneous rulings at trial in order to perfect them for later appeal. Brown ably convinced me that conventional wisdom about who should bear the burden of bringing errors to a court’s attention is woefully under-theorized. In particular, Brown’s move to analyze adjudicative error from the perspective of accident prevention in other legal contexts is both clever and generative of insights. Moreover, Brown made a persuasive case that normative judgments about …

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

The Right Approach To Harmless Error, Daniel Epps

Scholarship@WashULaw

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights.

Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able …

Communicating Punishment, Marah Stith Mcleod

Journal Articles

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state's reasons for imposing a death sentence may not be executed. Outside of capital punishment, the answer is still open. This Article begins to fill that gap, focusing on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their …

Media In Flux: Does Consolidation Promote The Public Interest?, Simone A. Dvoskin

Cardozo Arts & Entertainment Law Journal

The note examines the transformative impact of digital platforms on traditional media and the legal challenges arising from this shift, advocating for updated regulations to ensure accessibility, fairness, and public interest. It argues that the rapid evolution of technology has outpaced regulatory frameworks, necessitating reforms to address media consolidation, accessibility for individuals with disabilities, and the role of the FCC in overseeing new media platforms.

Defending Progressive Prosecution: A Review Of Charged By Emily Bazelon, Jeffrey Bellin

Faculty Publications

"Progressive prosecutors" are taking over District Attorney's Offices across the nation with a mandate to reform the criminal Justice system from the inside. Emily Bazelon's new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal Justice.

This Essay highlights the importance of Charged to modern criminal justice debates and leverages its concrete framing to offer a generally applicable theory of prosecutor-driven criminal justice reform. The theory seeks to reconcile reformers' newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Prejudice-Based Rights In Criminal Procedure, Justin Murray

Publications

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice-based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an …

Policing Procedural Error In The Lower Criminal Courts, Justin Murray

Publications

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

Race-Of-Victim Disparities And The "Level Up" Problem, Aya Gruber

Publications

No abstract provided.

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

Publications

This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.

Can The International Criminal Court Succeed? An Analysis Of The Empirical Evidence Of Violence Prevention, Stuart Ford

Loyola of Los Angeles International and Comparative Law Review

Despite significant optimism about the future of the International Criminal Court (“ICC”) during its early years, recently there has been growing criticism of it by both scholars and governments. As a result, there appears to be more doubt about the ICC’s ability to succeed now than at any other point in its history. So, are the critics correct? Is the ICC failing? No. This Article argues that, not only can the ICC succeed, there is strong evidence that it is already succeeding. It analyzes several recent empirical articles that have convincingly demonstrated that the ICC prevents serious violations of international …

Police Procedural Justice, Lawyer Procedural Justice, Judge Procedural Justice, And Satisfaction With The Criminal Justice System: Findings From A Neglected Region Of The World, Daniel K. Pryce, George Wilson

Sociology & Criminal Justice Faculty Publications

Although the impact of procedural justice on citizens’ satisfaction with the police and other branches of the criminal justice system has been tested in several geopolitical contexts, this is the first study to examine the relative impacts of police procedural justice, lawyer procedural justice, and judge procedural justice on satisfaction with a country’s criminal justice system. To assess the universal applicability of procedural justice, scholars must carry out research in all geopolitical regions. However, subSaharan Africa appears to be a region that scholars have neglected for far too long. As a result, the current study assesses the relative impacts of …

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Anderson V. State, 135 Nev. Adv. Op. 56 (Nov. 27, 2019), Tayler Bingham

Nevada Supreme Court Summaries

The Court determined that (1) when the government relies on the forfeiture exception of the Confrontation Clause to introduce a witness’s out-of-court statements, the burden of proof the litigant must meet is that of preponderance of the evidence; and (2) that a trial court does not abuse its discretion in denying a motion to substitute counsel and thereby violate the Sixth Amendment right to counsel when the trial court holds a Young hearing for each motion and enough evidence indicates there is not a complete breakdown in the attorney-client relationship.

Poasa V. State, 135 Nev. Adv. Op. 57 (Nov. 27, 2019), Gillian Block

Nevada Supreme Court Summaries

The Court reaffirmed its holding in Kuykendall v. State, interpreting NRS 176.055(1) to require sentencing courts to award credit for time served in presentence confinement.