Criminal Procedure Commons^™

Modelling Pretrial Detention, Melissa Hamilton

American University Law Review

Pretrial detention has become normative in contemporary criminal justice, rather than the exception to a rule of release for individuals not convicted of any crime. Even the opportunity for release with a bond amount often eludes the many individuals who are unable to afford, to pay. Defendants detained, pending trial suffer numerous negative consequences to their own legal cases, such as being more likely to feel pressured to plead guilty and to receive a prison sentence. The high numbers of those detained appear to disproportionately impact minorities and. have contributed to mass incarceration. As a. result, of these issues, the …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

The Case For Pattern-Or-Practice Investigations Against District Attorney's Office, Rory Fleming

University of San Francisco Law Review

No abstract provided.

The Future Of Criminal Culpability: Posttraumatic Stress Disorder's ("Ptsd") Effect On A Defendant's Actions And State Of Mind, Amin R. Yacoub, Becky Briggs

University of San Francisco Law Review

No abstract provided.

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

The Informed Jury, Daniel Epps, William Ortman

Scholarly Works

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Building Fierce Empathy, Binny Miller

Scholarly Articles in Law Reviews & Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

The Perils Of Private Prosecutions, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.

Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Olinda Moyd, Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Bianca Sukrow, Christoph Konig

Scholarly Articles in Law Reviews & Journals

The inspiration for this Article was the 2021 Conference of the Global Alliance for Justice Education (GAJE), a biannual gathering since 1999 of law educators and others interested in justice education from around the world. Due to the ongoing COVID-19 pandemic, the conference was conducted virtually. During the three-day conference, over 450 participants from 45 countries gathered to participate in the sharing of workshops and presentations, ranging from discussions of papers to five-minute "lightning talks." In addition, there were virtual spaces for social meetings with new and old friends. The authors attended as many of the sessions as possible in …

For Grand Juries, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

Citizen's Arrest And Race, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

Beyond Bail, Jenny E. Carroll

Faculty Scholarship

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities …

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.

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, …

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 …

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 …

Keynote Prosecutors And Race: Responsibility And Accountability, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Thank you so much, Madeline. I want to thank the Rutgers University Law Review and the Rutgers Center on Criminal Justice, Youth Rights, and Race for inviting me to participate in this very important symposium on Prosecutors, Power, and Racial Justice: Building an Anti-Racist Prosecutorial System. I want to give a special thanks to Professor Cohen and Gisselly, and all of the students who worked so hard to put the symposium together. It's such an important topic. I appreciate your interest, and [I] am particularly thankful to all of you [who] are here on this Friday afternoon to talk about …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

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 …

Distinguishing Plea Discounts And Trial Penalties, Ben Grunwald

Georgia State University Law Review

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Revocation And Retribution, Jacob Schuman

Faculty Scholarship

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, …

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Imagining The Progressive Prosecutor, Benjamin Levin

Publications

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

Pandemic, Protest, And Agency: Jury Service And Equal Protection In A Future Defined By Covid-19, Patrick C. Brayer

Faculty Works

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals …

Abolish Municipal Courts: A Response To Professor Natapoff, Brendan Roediger

All Faculty Scholarship

If we are serious about disrupting the generational reproduction of the racial social order, we are going to have to learn to let go. Taking up the legacy of criminal municipal courts and racial control, this Response argues against the practice of prescribing from the traditional “medication list” of liberal reforms (substantive, procedural, and “democratizing”) without grappling with whether a system or apparatus is so inextricably bound up with the maintenance of race and class hierarchy that it should be demolished. I assert that we should always ask whether something is redeemable before we ask whether it is reformable. In …