Criminal Procedure Commons^™

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

The Institutional Case For Partisan Gerrymandering Claims, G. Michael Parsons

Cardozo Law Review de•novo

For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well.

Pricing Justice: The Wasteful Enterprise Of America's Bail System, Liana M. Goff

Brooklyn Law Review

This note contributes to the growing national consensus about the need to reduce the population of low-income defendants who are detained pretrial due to their inability to afford bail. It documents the efforts undertaken by certain state actors to mitigate the harmful consequences of wealth-based pretrial systems and critiques the so-called alternatives to cash bail—namely, supervised release programs. This note suggests that lawmakers eliminate the role of finances and incarceration in pretrial procedure altogether and recommends an approach to criminal procedure that is based not only on heuristic methods of measuring cost and benefit but also normative principles of good …

Finally, A True Elements Test: Mathis V. United States And The Categorical Approach, Rebecca Sharpless

Brooklyn Law Review

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of mass incarceration, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses …

Who Let The Dogs Out—And While We’Re At It, Who Said They Could Sniff Me?: How The Unregulated Street Sniff Threatens Pedestrians’ Privacy Rights, Jacey Lara Gottlieb

Brooklyn Law Review

The Fourth Amendment affords United States citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Throughout the last two centuries, the Supreme Court has developed extensive case law that has created a somewhat formulaic approach to determining whether one’s Fourth Amendment rights have been violated—namely, the “reasonable expectation of privacy” test. The Court has applied this test to afford the home, vehicle, airport, and the pedestrian all varying levels of privacy rights, and has upheld most of these respective levels of privacy in the context of the police canine sniff. The …

“Lucky” Adnan Syed: Comprehensive Changes To Improve Criminal Defense Lawyering And Better Protect Defendants’ Sixth Amendment Rights, Meredith J. Duncan

Brooklyn Law Review

Almost twenty years ago, seventeen years old and accused of murder, Adnan Syed was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and sentenced to life in prison. The reality is that Syed is just another casualty of the criminal justice system’s tolerance of poor defense lawyering. The substandard quality of legal representation highlighted in Syed’s case continues to harm countless defendants nationwide, and the promise of effective assistance of counsel for the accused remains unfulfilled due to a combination of factors. This article suggests comprehensive changes to certain aspects of the criminal justice …

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

Costs Of Pretrial Detention, Shima Baughman

Utah Law Faculty Scholarship

Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …

Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …

Online Dispute Resolution: Stinky, Repugnant, Or Drab, Robert J. Condlin

Cardozo Journal of Conflict Resolution

In Part II, I provide a brief overview of ODR systems, describing the largest, most well-known, and most sophisticated platforms now in place, to give the reader a sense of the- richness, variety, and benefits of online disputing, and a hint of developments still to come. In Part III, I describe certain legal, political, and moral concerns that have yet to be addressed in the ODR literature, and identify some of the unintended consequences the widespread adoption of ODR systems might produce. And in Part IV, I describe ODR's unfinished agenda, the questions proponents of the process must answer, and …

What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1 (2017), Stuart Ford

UIC Law Open Access Faculty Scholarship

There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. On one side of this debate are many of the Court’s largest funders, including France, Germany, Britain, Italy, and Japan. They have repeatedly opposed efforts to increase the Court’s resources even as its workload has increased dramatically in recent years. On the other side of the debate is the Court itself and many of the Court’s supporters within civil society. They have taken the position that it is underfunded and does not have sufficient resources to succeed. This debate has persisted for years …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

Our Criminal Laws, Our Constitution, Sarah Seo

Faculty Scholarship

This essay reviews three recently published books that further explore this insight in the twentieth century. At first glance, vagrancy laws, the free will problem, and criminal records may seem to share little in common. But each study illuminates how criminal laws have defined our nation by creating what historian Barbara Welke has termed "borders of belonging," a boundary that laws create between people who enjoy full citizenship and those who do not. After all, a conviction and imprisonment are acts of social and political exclusion. Even the policing of suspected offenders often reveals who does not completely belong.

The …

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

Examining Rule 11(B)(1)(N) Error: Guilty Pleas, Appellate Waiver, And Dominguez Benitez, Leanna C. Minix

Washington and Lee Law Review

No abstract provided.

Dismissals As Justice, Anna Roberts

Faculty Scholarship

No abstract provided.

Criminal Sanctions And The Tpp: Section 18.77, Shawn Marie Boyne

SMU Science and Technology Law Review

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

Sb 1052: Miranda Rights For Minors, Albert G. Mendoza

University of the Pacific Law Review

No abstract provided.

Mental Health Courts And Sentencing Disparities, E. Lea Johnston, Conor P. Flynn

UF Law Faculty Publications

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court—including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of …

Bargained-For-Justice: Lessons From The Italians?, Michael Vitello

University of the Pacific Law Review

No abstract provided.

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Faculty Publications By Year

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …

Examination Of Witnesses In Criminal Cases, Hannah Steeves

Articles, Book Chapters, & Popular Press

The newest edition of Examination of Witnesses in Criminal Cases maintains its status as a key text on the topic. Author Earl J Levy, a national leader in the area of criminal law, has worked with the Criminal Lawyers’ Association, taught criminal law courses at various Canadian law schools, and has over 50 years experience as a litigator. The book, now in its seventh edition, contains necessary updates, and improvements have been made to both format and content while maintaining a similar, logical overview as in previous editions.

Shining A Light On The Shadow-Of-Trial Model: A Bridge Between Discounting And Plea Bargaining, Lauren E. Clatch

Law Faculty Publications

Phillip Bivens, accused of raping and killing a woman in Mississippi in 1979, was confronted with this choice: take the bargain of life in prison, or go to trial and face the death penalty. After three decades in prison, Bivens was exonerated in 2010 by DNA tests conducted by the Innocence Project in New Orleans. Why would Bivens, who was factually innocent, plead guilty to a crime he did not commit and forgo his constitutional right to a trial? How can this be explained? Bivens’s choice may be deemed rational because his choice was between life, albeit life in prison, …

From Credibility Issues To Collusion With Russia: The Dangers Posed By The Spread Of "Fake News" And What We Can Do About It, Brynne Morningstar

Public Interest Law Reporter

No abstract provided.

Constraining Monitors, Veronica Root

Faculty Scholarship

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis …

Let Them Frye: Frye Hearings For Determination Of "Mental Disorders" In The Sexually Violent Persons Act, Hannah Henkel

Journal of Criminal Law and Criminology

Specific laws aimed at the confinement of mentally disabled sexually violent persons have existed for years. Originally, these laws aimed to rehabilitate a person within a mental hospital and help him with his disorders, aiming to help him enter back into society. However, throughout the years, the laws morphed into ways to keep convicted criminals from society after their prison sentence ended for fear of potential future crimes. In Illinois, the courts find a man falls within the sexually violent persons law when he remains too dangerous to be released after his criminal confinement. A person must have a “mental …