Law Enforcement and Corrections Commons^™

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

The Miranda App: Metaphor And Machine, Andrew Ferguson, Richard Leo

Scholarly Articles in Law Reviews & Journals

For fifty years, the core problem that gave rise to Miranda – namely, the coercive pressure of custodial interrogation – has remained largely unchanged. This article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. The Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address several decades of …

Campus Insecurity: Due Process, Proof, And Procedure In Campus Sexual Assault Investigations, Travis Nemmer

Criminal Law Practitioner

No abstract provided.

Policing Criminal Justice Data, Wayne Logan, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses a matter of fundamental importance to the criminal justice system: the presence of erroneous information in government databases and the limited government accountability and legal remedies for the harm that it causes individuals. While a substantial literature exists on the liberty and privacy perils of large multi-source data assemblage, often termed "big data," this article addresses the risks associated with the collection, generation and use of "small data" (i.e., individual-level, discrete data points). Because small data provides the building blocks for all data-driven systems, enhancing its quality will have a significant positive effect on the criminal justice …

Arbitrary Detention? The Immigration Detention Bed Quota, Anita Sinha

Scholarly Articles in Law Reviews & Journals

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at …

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Deconstructing The Crimeless Gender: Women's Prison Gangs, Emma Burgess Roy

Criminal Law Practitioner

No abstract provided.

Vilifying The Vigilante: A Narrowed Scope Of Citizen's Arrest, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Ira P. Robbins* The doctrine of citizen’s arrest in the United States has been ignored for far too long. In every jurisdiction in the United States, a private person may lawfully detain another and often may even use physical force to do so. Placing such power in the hands of ordinary, untrained individuals creates the possibility that citizens will misuse or abuse the privilege, sometimes with serious consequences for both the arrestor and the arrestee. This risk is compounded by the disparate treatment of the citizen’s arrest doctrine in different jurisdictions and the ambiguities inherent in many of the doctrine’s …

The Prosecutor's Ethical Duty To End Mass Incarceration, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Frontlines: Policing At The Lexus Of Race And Mental Health, Camille Nelson

Scholarly Articles in Law Reviews & Journals

he last several years have rendered issues at the intersection of race, mental health, and policing more acute. The frequency and violent, often lethal, nature of these incidents is forcing a national conversation about matters which many people would rather cast aside as volatile, controversial, or as simply irrelevant to conversations about the justice system. It seems that neither civil rights activists engaged in the work of advancing racial equality nor disability rights activists recognize the potent combination of negative racialization and mental illness at this nexus that bring policing practices into sharp focus. As such, the compounding dynamics and …

Predictive Prosecution, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Police in major metropolitan areas now use “predictive policing” technologies to identify and deter crime. The early successes of predictive policing have led a few prosecutor’s offices to adopt quasi-“predictive prosecution” strategies. Predictive prosecution involves the identification and targeting of suspects deemed most at risk for future serious criminal activity, and then the use of that information to shape bail determinations, charging decisions, and sentencing arguments. This type of “Moneyball” prosecution has begun in New York City and Chicago, and this essay addresses the promise and peril of this new technology.This essay for the Wake Forest Law Review’s Symposium on …

Policy Review And Development Guide: Lesbian, Gay, Bisexual, Transgender, Questioning, And Intersex Persons In Custodial Settings, 3rd Ed., Brenda V. Smith, Jaime M. Yarussi

Research Reports & White Papers

The Project on Addressing Prison Rape (the Project) at American University’s Washington College of Law (WCL) has had a cooperative agreement with the National Institute of Corrections (NIC) to provide training and technical assistance to high-level correctional decisionmakers on key issues in preventing and addressing staff sexual misconduct since 1999. In 2003, with the enactment of the Prison Rape Elimination Act (PREA), the Project’s focus shifted to addressing prison rape—both staff sexual misconduct and inmateon- inmate sexual abuse. Beginning in 2006, Smith Consulting began a collaborative effort with the Project and NIC to focus efforts on providing technical assistance to …

Double Counting: The Appropriate Application Of The Vulnerable Victim Enhancement For Child Sex Offenders, Amy Yoon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Salvaging "Safe Spaces": Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner Esq.

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Boys, Rape And Masculinity: Reclaiming Boys' Narratives Of Sexual Violence In Custody, Brenda V. Smith

Project on Addressing Prison Rape - Articles

This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice – sexual abuse of boys in custody by female staff. Professor Smith will outline the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk will colclude with policy and practice prescription and recommendations for …

Remarks On Collateral Consequences Of Mass Incarceration, William C. Hubbard

Criminal Law Practitioner

No abstract provided.

Slavery By Another Name: 'Voluntary' Immigrant Detainee Labor And The Thirteenth Amendment, Anita Sinha

Scholarly Articles in Law Reviews & Journals

During the McCarthy era, Congress passed an obscure law authorizing detained immigrants to work for a payment of one dollar a day. The government justified the provision, which was modeled after the 1949 Geneva Convention’s protections for prisoners of war, in the context of the period’s relative heightened detentions of noncitizens. Soon afterwards, the enactment of the Immigration and Nationality Act of 1952 diminished the use of detention drastically, and the practice of detainee labor lay dormant for decades. Modern changes to immigration law and its systems have rendered immigration detention today the largest mass incarceration movement in U.S. history. …

The Un-Territoriality Of Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Boys, Rape And Masculinity: Reclaiming Boys’ Narratives Of Sexual Violence In Custody, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice — sexual abuse of boys in custody by female staff. Professor Smith outlines the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk article concludes with policy and practice prescription and recommendations for further …

Meeting The Youthful Inmate Standard: Addressing Operations, Finding Promising Practices And Knowing The Law, Brenda V. Smith, Elissa Rumsey, Carmen Daugherty

Presentations

No abstract provided.

An End To Silence: Inmate's Handbook On Identifying And Addressing Sexual Abuse, 3rd Edition, Brenda V. Smith

Research Reports & White Papers

"Though many correctional agencies have taken steps to comply with PREA standards and create safer environments for individuals in their care, inmates in custody still face sexual abuse and harassment by staff or other inmates. Staff and inmates still report problems identifying those at risk of sexual abuse, reporting sexual abuse, and holding those responsible for sexual abuse accountable. This publication is a tool for educating inmates about legal and other mechanisms, including the Prison Rape Elimination Act (PREA), that can provide protection and redress from sexual abuse in custodial settings" (p. 5). Sections of this handbook are: introduction; what …

Fifty State Survey Of Mandatory Reporting Statutes, Brenda V. Smith

The Project on Addressing Prison Rape - Surveys

Mandatory reporting state statutes regarding the sexual abuse of children are compiled and reported. Entries include (if provided) the following information: state; mandatory reporting statutes name; what has to be reported; relevant definitions; persons required to report; reporting procedures; and penalty for failure to report.

Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article examines the American Bar Associations’ Standards for Criminal Justice proposed Law Enforcement Access to Third Party Records (LEATPR). The article was written to be part of an Oklahoma Law Review Symposium on the subject of the LEATPR Standards. The article explores how the ABA LEATPR Standards can survive the impact of big data policing. Big data policing, as described here, involves utilizing vast, networked databases to investigate and also predict criminal activity. Big data policing involves the use of not just third party, but "fourth party" commercial aggregators as well as de-identified data sets, that eventually can be …

Personal Curtilage: Fourth Amendment Security In Public, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on …

Police Officer's Safety: An Exception Within An Exception Of The Fourth Amendment, Jeffrey T. Wennar

Criminal Law Practitioner

No abstract provided.

Ending Silence: Demanding Safety From Sexual Assault - I Reported, Brenda V. Smith, Caleb J. Bess, Rebecca I. Heinsen, Jaime V. Yarussi, Michael J. Auger

Research Reports & White Papers

Ending Silence: Demanding Safety from Sexual Assault & Youth Speaking Up about Sexual Abuse in Custody are a series of graphic novels for adult and juvenile inmates in custodial settings. These graphic novels are intended to educate inmates about how to identify and address incidents of sexual assault. The plot lines in these graphic novels dramatize situations we know occur in custodial settings. The use of graphic novels in community education projects is well established. By presenting information through an illustrative medium, these novels aim to disseminate information about the sexual abuse reporting process to inmates at all literacy levels. …

Quick Reference Guide: Confidentiality And Privilege Exceptions And Mandatory Reporting Obligations Of Rape Crisis Counselors, Brenda V. Smith

Research Reports & White Papers

NOTE: The aim of the Quick Reference Guide (QRG) is to give agencies and individual a quick reference for reporting obligations of rape crisis counselors. The QRG supplements the Fifty State Survey of Confidentiality and Privilege Statutes Rape Crisis/ Sexual Assault Counselors. We have listed the exceptions to confidentiality and privilege in commonly used statutory language. Specific language varies by state. For the full citations associated with this QRG, please refer to the Quick Chart or the Fifty State Survey.

Implementing The Prison Rape Elimination Act: A Toolkit For Jails, Brenda V. Smith, Dr. Gary Dennis, Susan W. Mccampbell, Michael S. Mccampbell, Elizabeth Price Layman, Caleb Asbridge, Rachel Bosley, Andie Moss, Jeff Shorba, Shaina Vanek, Jaime Yarussi, American Jail Association, National Institute Of Corrections' Large Jail Network, Nationa Sheriff's Association, American Correctional Association, Larry Cook, Dr. Robert Decomo, Jim Dennis, Nancy Deferrari, John Delaney, Timothy Fay, Diahann Frazier, David Gaspar, Quandara Grant, Dee Halley, Jamey Kessinger, Calvin King, Shawn Laughlin, Andrew Nunnally, Debra Oliver-Hammons, Steven Pizzala, Lisa Plowman, Gayle Ray, Larry Reynolds, Gwyn Smith-Ingley, Chris Sweney, Wynnie Testamark-Samuels, Janie Vergakis, Gregory Winston, Berry Zeeman

Presentations

Minor edits. “The goal of this Toolkit is to provide jails of all sizes, political divisions, and geographic locations with a step-by-step guide for preventing, detecting, and eliminating sexual abuse of inmates in their custody – and for responding effectively to abuse when it occurs. Prison rape includes all forms of inmate sexual abuse within a correctional facility, including state and federal prisons, county and municipal jails, police lock-ups, holding facilities, inmate transportation vehicles, juvenile detention facilities, and community corrections facilities. Protecting arrestees, detainees, and inmates from sexual violence is part of a jail’s core mission. This toolkit will help …

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melissa C. Loomis

Scholarly Articles in Law Reviews & Journals

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than …

Drowned Out Without Discovery: Post-Conviction Procedural Inadequacy In An Era Of Habeas Deference, Rachel Cohen, Krista Dolan

Criminal Law Practitioner

No abstract provided.