Criminal Procedure Commons^™

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Overcoming Obstacles To Reentry Panel, Mackenzie Hobbs

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Front Matter, Mackenzie Hobbs

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Book Review Of Charged: The New Movement To Transform American Prosecution And End Mass Incarceration, Justin Murray

Journal of Legal Education

No abstract provided.

Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries Will Indict Anything, But A Police Officer, Kaeleigh Wiliams

SLU Law Journal Online

Grand juries will indict everyone but police officers. In this article, Kaeleigh Williams argues that the time has come for a new mechanism to be used in police officer misconduct cases.

Spring 2022 Clinical Program, Benjamin N. Cardozo School Of Law

2021–2022 Flyers

No abstract provided.

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

Corruption And Its Manifestations In The Field Of Public Education At The Present Stage Of Development Of The Republic Of Uzbekistan, Abdullayeva Malikabonu Erkin Qizi

ProAcademy

The article deals with the concept and signs of corruption in national and international legislation. Based on the analysis of legal definitions of the concept of corruption, lists of acts of corruption in conjunction with the provisions of the most significant international legal acts that laid the foundations for understanding corruption, an attempt is made to determine the list and content of essential features of this social and legal phenomenon. As significant signs of corruption, the author singled out: social harm (danger), sphere of existence, subject of corruption, subjects, use by the subject of corruption of official (official) powers or …

Roper’S Unfinished Business: A New Approach To Young Offender Death Penalty Eligibility, Nichole M. Austin

Buffalo Law Review

No abstract provided.

With Unanimity And Justice For All: The Case For Retroactive Application Of The Unanimous Jury Verdict Requirement, Kara Kurland

Northwestern Journal of Law & Social Policy

Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury …

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …

Beyond Binary Thinking: Addressing The Biases That Threaten The Progressive Prosecution Movement, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

A society that regularly and systematically dehumanizes citizens of color will continue to wield the most punitive aspects of its criminal system against those citizens, so long as they are legally available. The racial discrimination that pervades the American criminal system drives its punitiveness and fosters excessive punishments that increase harm and criminal wrongdoing.

As Muddy As The Mississippi River: An Examination Of Louisiana Jury Venire Creation Procedures, Kristen M. Vicknair

William & Mary Journal of Race, Gender, and Social Justice

Americans expect their constitutional rights to be respected by the federal, state, and local governments, but a lack of transparency on a government’s behalf prevents Americans from being able to trust their governments fully. This Note demonstrates the astounding lack of transparency in Louisiana parishes’ jury venire creation procedures, which prevent Louisianans from trusting that their communities are represented by a fair cross-section on jury venires. The same lack of transparency restricts any constitutional challenges of the representation on appeal, as the major test for the fair cross-section, the Duren test, requires a showing of systematic exclusion on the government’s …

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Standing By To Protect Child Abuse Victims: Utilizing Standby Counsel In Lieu Of Personal Cross-Examination, Claire Murtha

Dickinson Law Review (2017-Present)

Child abuse is a pervasive problem in the United States. Often, the abused child’s word is the only evidence to prove the abuse in court. For this reason, the child’s testimony is critical. Testifying can pose a challenge for the abused child who must face her abuser in the courtroom, especially if that abuser personally questions her.

The United States Supreme Court has recognized the legitimate and strong interest the state has in protecting the psychological and physical well-being of children. When a child will face significant trauma and cannot reasonably communicate in the courtroom, the child can be questioned …

Cyberterrorism And The Public Safety Exception To Miranda, Mitch Snyder

Dickinson Law Review (2017-Present)

Cyberattacks against U.S. targets are becoming increasingly common. To effectively combat these attacks, law enforcement officers need the tools to respond to and prevent cyberattacks before they can occur.

In recent years, hackers have launched cyberattacks against infrastructural targets such as power grids, oil and gas distribution computer systems, and telecommunications networks. Cyberattacks have also targeted U.S. government websites, including the U.S. Department of Transportation and the U.S. Department of Treasury. Recently, a cyberattack against SolarWinds, a Texas-based I.T. company, compromised the computer and network systems of federal, state, and local governments; critical infrastructure entities; and other private sector organizations. …

Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway

Fordham Law Review

Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …

Blood In The Water: Why The First Step Act Of 2018 Fails Those Sentenced Under The Maritime Drug Law Enforcement Act, Lauren R. Robertson

Washington and Lee Law Review

For some, the open ocean is prison. The Maritime Drug Law Enforcement Act (MDLEA) prohibits individuals from knowingly or intentionally distributing a controlled substance or possessing it with the intent to distribute. Empowered by the MDLEA, the United States Coast Guard arrests and detains foreign nationals hundreds of miles outside of U.S. territorial waters. After months shackled to Coast Guard ships, these individuals face the harsh reality of American mandatory minimum drug sentencing, judged by the kilograms of drugs on their vessels. But the MDLEA conflates kilograms with culpability. More often than not, those sentenced are fishermen-turned-smugglers due to financial …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

Explaining Florida Man, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

"Florida Man" is a popular cultural phenomenon in which journalists report on Floridians' unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people's attention nationwide. Florida man is one of the latest unique trends to come from the Sunshine State and contributes to Florida's reputation as a quirky place.

Explanations for Florida Man center on Florida's Public Records Law, which is known as one of the most expansive open records laws in the country. All states and …

The End Of Liberty, Adam J. Kolber

Faculty Scholarship

No abstract provided.

Race-Based Remedies In Criminal Law, Ion Meyn

William & Mary Law Review

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, …

Bleeding From The Holes In The Theory: How Flawed Deterrence In Federal Tort Claims Enables Police Brutality, Andrew Reisman

Cardozo Journal of Equal Rights & Social Justice

The note argues that federal tort laws, particularly the Federal Tort Claims Act (FTCA) and Bivens actions, are ineffective in deterring police brutality due to structural flaws that prevent individual accountability. It proposes reforms to strengthen these legal mechanisms and promote transparency and accountability within federal law enforcement agencies.

A New Age Of Surveillance: Facial Recognition In Policing And Why It Should Be Abolished, Annslee Perego

Cardozo Journal of Equal Rights & Social Justice

The note argues that facial recognition technology in policing is fundamentally flawed due to its racial bias, erosion of privacy, and suppression of democratic participation. It advocates for the abolition of facial recognition in law enforcement, citing its inherent inaccuracies and societal risks, and proposes regulatory measures to limit its use if outright abolition is not feasible.

Two Steps Forward, One Step Back: How New York’S Bail Reform Saga Tiptoes Around Addressing Economic Inequality, Daniel Chasin

Cardozo Law Review

No abstract provided.

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …