Criminal Procedure Commons^™

U.S. Prisons And System Reform, Darian Reimels

English Department: Research for Change - Wicked Problems in Our World

Prison systems, specifically in the U.S., are a wicked problem. For years prisoners have been treated inhumanely inside and outside of prison, with everyone looking at them with a judgmental eye. This essay aims to point out and bring light to these issues within the prison system. Specifically, it focuses on how inmates are treated during and after serving their sentence, and solitary confinement. To better understand and explain the problems to you, extensive research was done. Articles were read, organizations were researched, and a documentary was watched to gather the information needed to write this essay. The results showed …

The Ethics Of Interrogation: How Unethical Interrogations Lead To False Confessions And What It Means For The Criminal, Janelle Havens

Criminology Student Work

Forensic interrogation is a vital step in the process of criminal investigations in order to extract information about suspects and the crime at hand. However, tunnel vision, artificial time constraints, lack of thorough training, and noble-cause corruption can influence how an investigator decides to interrogate a suspect or witness. When these influences are exerted on an investigator, the need to secure an arrest and conviction overpowers the need for justice - this results in false confessions and wrongful convictions. This is otherwise known as “the end doesn't justify the means” mindset. This causes investigators to engage in unethical interrogations, whether …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Faculty Scholarship

Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice …

A Net For A Cooperator’S Leap Of Faith: The Due Process Need For Universal Acceptance Of Bad Faith Review Of Prosecutors’ Substantial Assistance Determinations In Federal Sentencing, Lucius T. Outlaw

Marquette Law Review

Cooperation is critical to federal criminal cases. For the government, cooperation is vital to securing the leads, information, and evidence needed to successfully investigate and prosecute criminal activity, particularly drug trafficking conspiracies and white-collar fraud crimes. For federal defendants, cooperation is the primary way to reduce their prison time exposure. Therefore, how a defendant’s cooperation is evaluated and translated into sentencing leniency is a significant issue for the government and cooperating defendants. Federal law and sentencing guidelines grant the keys to the

evaluation process to federal prosecutors by requiring a prosecutor’s substantial assistance motion before a judge can grant sentencing …

The Rural Texas Sheriff, Andrew L.B. Davies, Valeria Liu, Elisa Torossian

Deason Center Reports

The Rural Texas Sheriff reports on a focus group conducted in conjunction with the Deason Center's 2019 Rural Criminal Justice Summit. The report places rural Texas sheriffs and their agencies in a national context. It also offers insight into the focus group's perceptions of rural law enforcement and jail management. With first-hand accounts of these sheriffs’ experiences, the report offers a compelling look at the personal and professional lives of Texas’ rural sheriffs.

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul Heaton

Indiana Law Journal

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

Giving Due Process Its Due: Why Deliberate Indifference Should Be Confined To Claims Arising Under The Cruel And Unusual Punishment Clause, Shad M. Brown

Washington and Lee Journal of Civil Rights and Social Justice

This Note discusses culpability requirements for claims brought by pretrial detainees and convicted prisoners. The initial focus is on deliberate indifference, a culpability requirement formulated under the Cruel and Unusual Punishment Clause but symmetrically applied to claims arising under the Due Process Clause of the Fourteenth Amendment. The Note then shifts to Kingsley v. Hendrickson, a landmark Supreme Court decision that casts doubt on the application of Eighth-Amendment standards to Fourteenth-Amendment claims. Finally, this Note advocates for the application of objective unreasonableness, a different culpability requirement, to claims arising under the Due Process Clause. It does so on the …

Rehabilitating Charge Bargaining, Nancy Combs

Indiana Law Journal

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity—the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant’s …

The Continued Relevance Of The Contributions Of The Sierra Leone Tribunal To International Criminal Law, Charles C. Jalloh

Articles

No abstract provided.

The “Innocence Penalty”: Is It More Pronounced For Juveniles?, Nilam A. Sanghvi, Elizabeth A. Delosa

Dickinson Law Review (2017-Present)

Despite the presumption of innocence, we know that individuals accused of crimes are punished for maintaining their innocence in ways both tangible and intangible as they make their way through our criminal justice system. For example, even if instructed not to, jurors may infer guilt from a defendant’s failure to testify; defendants who exercise their right to go to trial receive lengthier sentences if convicted than those who plead guilty; and, once convicted, defendants who maintain their innocence are often denied opportunities for parole or clemency. This article explores whether these “innocence penalties” are even greater for children who are …

Young, Black, And Wrongfully Charged: A Cumulative Disadvantage Framework, Emily Haney-Caron, Erika Fountain

Dickinson Law Review (2017-Present)

The term wrongful conviction typically refers to the conviction or adjudication of individuals who are factually innocent. Decades of research has rightfully focused on uncovering contributing factors of convictions of factually innocent people to inform policy and practice. However, in this paper we expand our conceptualization of wrongful conviction. Specifically, we propose a redefinition that includes other miscarriages of justice: A wrongful conviction is a conviction or adjudication for someone who never should have been involved in the juvenile or criminal legal system in the first place. Although there are various miscarriages of justice that might appropriately be categorized under …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

The Absence Or Misuse Of Statistics In Forensic Science As A Contributor To Wrongful Convictions: From Pattern Matching To Medical Opinions About Child Abuse, Keith A. Findley

Dickinson Law Review (2017-Present)

The new scrutiny that has been applied to the forensic sciences since the emergence of DNA profiling as the gold standard three decades ago has identified numerous concerns about the absence of a solid scientific footing for most disciplines. This article examines one of the lesser-considered problems that afflicts virtually all of the pattern-matching (or “individualization”) disciplines (largely apart from DNA), and even undermines the validity of other forensic disciplines like forensic pathology and medical determinations about child abuse, particularly Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT). That problem is the absence or misuse of statistics. This article begins by applying …

Pretrial Custody And Miranda, Kit Kinports

Washington and Lee Law Review

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda—in Shatzer’s case while he was living among the general prison population and in Fields’s case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. This Article maintains that …

Closing Reflections On The Contributions On The Scsl's Legal Legacy, Charles C. Jalloh

Articles

No abstract provided.

Do You See What I See? The Science Behind Utah Rule Of Evidence 617, Louisa Heiny

Utah Law Faculty Scholarship

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness, but rather a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

"Pistol Shots Ring Out In The Barroom Night": Bob Dylan's "Hurricane" As An Exam (Or Course) In Criminal Procedure, Michael L. Perlin

Articles & Chapters

Bob Dylan wrote the song Hurricane to draw the public’s attention to the conviction of the boxer, Rubin “Hurricane” Carter, for a crime (multiple murders) which Carter did not commit. Dylan’s song – and its performance as a part of Dylan’s fabled Rolling Thunder Tour – brought significant public attention to this case (and the miscarriage of justice it reflected), and eventually led to the granting of federal habeas corpus (a decision affirmed by the Third Circuit) and the freeing of Carter from state prison in New Jersey. The song takes the listener from the facts of the crime, through …

Policing Pregnancy Loss: Misuse Of Abuse Of A Corpse Laws, Monica Siwiec

Cardozo International & Comparative Law Review

The note examines the misuse of abuse of a corpse laws to criminalize pregnant persons for pregnancy loss, arguing that such prosecutions violate constitutional principles, including the void-for-vagueness doctrine and equal protection. These laws, originally designed to regulate corpse desecration and mistreatment, are increasingly being applied in ways that disproportionately target marginalized groups, particularly women of color. The analysis highlights how the broad and vague language of these statutes enables arbitrary enforcement, undermining legal clarity and perpetuating reproductive injustice.

Dignity, Freedom, And Digital Rights: Comparing American And European Approaches To Privacy, Virginia Kozemczak

Cardozo International & Comparative Law Review

The note examines the contrasting approaches of the United States and the European Union to digital privacy, emphasizing how the US prioritizes liberty while the EU focuses on dignity. It argues that US privacy law, particularly under the Fourth Amendment, struggles to adapt to technological advancements, as seen in cases like Carpenter v. United States. In contrast, the EU's framework, guided by Article 8 of the European Convention on Human Rights, offers more comprehensive protections by addressing the broader context of data collection and processing. The author suggests that the US could enhance its privacy protections by adopting elements …

Prostitutes And Policing - Analysis Of Tactics Used To Reduce The Demand For Sex, Morgan Helfman

Cardozo International & Comparative Law Review

The note critically examines the tactics used to reduce demand for commercial sex, focusing on the Nordic Model and its implementation in the U.S. It argues that while these tactics aim to deter buyers through shaming and criminalization, they raise ethical, legal, and practical concerns, particularly regarding police misconduct and the impact on marginalized communities. The analysis advocates for a shift toward education and rehabilitation over punitive measures to address the root causes of prostitution.

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Changing The Way We See Modern Policing: Abolition Or Reform, Kathryn Miller, Marbré Stahly-Butts, Mecole Jordan-Mcbride, Kate Levine, Benjamin Tucker, Kumar Rao

Cardozo Journal of Equal Rights & Social Justice

The symposium examines the historical and systemic roots of mass incarceration in the United States, tracing its origins to the 13th Amendment, Black Codes, convict leasing, and the war on drugs. It critiques the prison industrial complex as a system of oppression rooted in racism, capitalism, and heteropatriarchy, and advocates for transformative reforms to dismantle policing and incarceration. The analysis emphasizes the need to move beyond superficial reforms and instead adopt abolitionist approaches that address the root causes of systemic violence and inequality.

Rehabilitating Charge Bargaining, Nancy Amoury Combs

Faculty Publications

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity--the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant's …

Restorative Federal Criminal Procedure, Leo T. Sorokin, Jeffrey S. Stein

Michigan Law Review

A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.

Protecting The Children Of Indian Country: A Call To Expand Tribal Court Jurisdiction And Devote More Funding To Indian Child Safety, Adam Crepelle

Cardozo Journal of Equal Rights & Social Justice

The article argues that the legal framework governing Indian country, particularly the Supreme Court's decision in *Oliphant v. Suquamish Indian Tribe*, has failed to protect Indian women and children from violence, perpetuating a crisis of sexual assault, child abuse, and murder. It contends that affirming tribal sovereignty and expanding tribal jurisdiction over non-Indians are essential to addressing these issues and ensuring the safety and well-being of Indian children.

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Michigan Law Review

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon.

Racial Disparities Inherent In America's Fragmented Parole System, Olinda Moyd

Scholarly Articles in Law Reviews & Journals

This global health crisis has proven to be an equal opportunity discloser, in that it has spotlighted the layers of inequities and racial disparities so engrained in America’s structural systems. Nowhere else is this more evident than in our criminal legal system, where justice is often austere for African Americans. The ghastly statistics of the number of people confined in jails and prisons do not fully capture the scope and extensive reach of those swept up in our legal system. It is estimated that about 4-5 million people are on community supervision, to include probation and parole, which far outnumber …

Kebijakan Penghapusan Izin Lingkungan Dalam Ruu Cipta Kerja Dan Dampaknya Terhadap Pembangunan Berkelanjutan Di Indonesia, Kornelius Benuf, Abram Robert Aritonang, Supriardoyo Simanjuntak

Jurnal Hukum & Pembangunan

The government is currently discussing about Jobs Creation Bill on the implementation of national development. The drafting of Jobs Creation Bill is carriedout by applying the omnibus law system. However, on the Bill there are numbers of irregularities such as the removal of environmental permits and replaced with environmental agreements. This raises legal issues because the changes of terminology onthe Bill have juridical implications for the implementations of sustainable developments in Indonesia. This legal issue will be researched further in this study. The method used is normative juridical with secondary data in the form of primary legal materials ofthe Jobs …

Mencari Jejak Konsep Judicial Restraint Dalam Praktik Kekuasaan Kehakiman Di Indonesia, Dian Agung Wicaksono, Andi Sandi Antonius Tabusassa Tonralipu

Jurnal Hukum & Pembangunan

The decision on judicial review of Laws by the Constitutional Court was allegedly not fully obeyed by the parties affected by the decision. One form of disobedience tothe judicial review decision by the Constitutional Courtwas shown by the Supreme Court concerning the decision related to the opening of the opportunity to submit a Peninjauan Kembali more than once, which was responded by the Supreme Court with internalregulations which emphasized that Peninjauan Kembali could only be done once.From the phenomenon, this research tries to trace the concept of judicial restraint in the practice of judicial power in Indonesia, as well as …

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.