Law Enforcement and Corrections Commons^™

Resisting Nullification In Excessive Force Prosecutions, Sarah E. Wagner

Buffalo Law Review

Police violence in the United States occurs at an alarming rate. Enforcing federal criminal laws aimed at holding law enforcement officers accountable for their misconduct is difficult. Even where there is strong evidence of guilt, jurors often acquit officers rather than allow them to face criminal consequences for their actions. This Article examines suspected nullification verdicts in excessive force cases through the lens of an expansive body of research on juror and jury decision making. What emerges is the theory that nullification verdicts in excessive force cases are a function of the presence of one or more authoritarian jurors, the …

A National Survey And Critical Analysis Of University Police Statutes, Vanessa Miller

Buffalo Law Review

This Paper provides an empirical study and critical analysis of university police statutes in all fifty jurisdictions, Guam, Puerto Rico, and the District of Columbia. The primary focus of the survey is to examine the regulatory framework governing campus police officers at public institutions of higher education. The study employs a crossdisciplinary approach, combining critical legal and qualitative analyses to provide a comprehensive overview of the legal landscape surrounding university police across the United States. The findings of the study include several key elements related to university police, such as police powers, jurisdiction, governing bodies, removal procedures, and use of …

The Enduring Lives Of False Legislative Facts: Asset Forfeiture, Brian Kelly, Taylor De Lavagea

Buffalo Law Review

Federal courts have found asset forfeiture constitutional by relying on assertions that have been accepted as true without being established at trial. These “legislative facts” play a central and enduring role not only in jurisprudence but in the broader public policy debate over forfeiture. To date, these assertions have not been subject to careful empirical review. We test three central legislative facts frequently offered as providing a compelling government interest for the use of forfeiture: (1) that forfeiture provides vital funding for law enforcement activities; (2) that forfeited funds are used to reimburse the victims of crime; and (3) that …

When A Picture Is Worth A Thousand Sentences: A Call To Reword Federal Sentencing Of Non-Production Child Pornography Offenses In The United States, Lucy T. Shephard

Buffalo Law Review

No abstract provided.

Life Without Parole: An Eighth Amendment Analysis, Alexis Dicarlo

Buffalo Human Rights Law Review

This Article will analyze the constitutionality of life without parole under the U.S. Supreme Court’s test for categorical bans on sentencing practices. This article first addresses the cruelty of prison and how that affects individuals with life sentences specifically. Next, it will analyze life without parole under the Supreme Court’s Eighth Amendment analysis, starting with examining evolving standards of decency. In doing so, this article will address how the U.S. operates with respect to sentencing compared to the rest of the world. Importantly, it will engage in a culpability analysis, following the Supreme Court’s logic, that ultimately favors abolition of …

Police Funding As A Deficit Of Democracy, Not Deterrence, Anthony O'Rourke, Rick Su, Guyora Binder

Journal Articles

Professor Noah Smith-Drelich’s Funding the Police is a welcome addition to the growing literature on structural barriers to implementing abolitionist visions of public safety. Professor Smith- Drelich’s central argument is consistent with our findings, in Defunding Police Agencies, that external funding of local police agencies imposes a set of “indirect constraints” that ensure robust police budgets and disincentivize spending on non-police social programs that might better ensure public safety. We believe, however, that Professor Smith-Drelich may be too sanguine about the deterrence potential of constitutional tort judgments. Misconduct judgments are largely financed through commercial insurance and public borrowing. Legal changes …

Disaster Risk In The Carceral State, Saptarishi Bandopadhyay, Joshua R. Coene

Journal Articles

The overlap between prisoner vulnerability and disasters in the United States is undeniable. During 2020 and 2021, the United States endured a series of natural hazards such as wildfires, floods, and hurricanes, many of which exposed the country’s 2.1 million inmates to additional risks and compounded the danger posed by COVID-19. Yet policymakers and scholars are only beginning to appreciate the centrality and magnitude of disaster risk management for the millions of people currently held in penal institutions around the country. Unsurprisingly, the production of “lessons learned” documents that follow in the aftermath of disasters overlook how prisoner vulnerability is …

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Journal Articles

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

Developing Police, Madalyn K. Wasilczuk

Buffalo Law Review

No abstract provided.

Focusing Presidential Clemency Decision-Making, Paul J. Larkin Jr.

Buffalo Law Review

The Article II Pardon Clause grants the President authority to award clemency to any offender. The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary. The clause authorizes the President to grant clemency as he sees fit, but the clause does not tell him when he should feel that way.

Historically, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous …

Felony Disenfranchisement And Voting Rights Restoration In The States, Manoj Mate

Journal Articles

No abstract provided.

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

The Constitutionalization Of Parole: Fulfilling The Promise Of Meaningful Review, Alexandra Harrington

Journal Articles

Almost 12,000 people in the United States are serving life sentences for crimes that occurred when they were children. For most of these people, a parole board will determine how long they will actually spend in prison. Recent Supreme Court decisions have endorsed parole as a mechanism to ensure that people who committed crimes as children are serving constitutionally proportionate sentences with a meaningful opportunity for release. Yet, in many states across the country, parole is an opaque process with few guarantees. Parole decisions are considered “acts of grace” often left to the unreviewable discretion of the parole board.

This …

Taking Restorative Justice Seriously, Adriaan Lanni

Buffalo Law Review

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings thoseaffected by a criminal offense together in an attempt to address the harmcaused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful …

Disbanding Police Agencies, Anthony O'Rourke, Rick Su, Guyora Binder

Journal Articles

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

Police Body Cameras: Go Big Or Go Home?, Ronald J. Coleman

Buffalo Law Review

Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical …

Sexual Lynching, Luis E. Chiesa

Journal Articles

Different groups of people experience rape in different ways. Empirical evidence confirms that women fear rape considerably more than men, that incarcerated males fear being sexually assaulted more than non-incarcerated males, and that transgender individuals are more fearful of being raped than cisgender individuals. In the case of women, fear of rape often conditions many decisions females make, including what to wear, where to go, and how much to drink. In the prison context, fear of rape leads many men to adopt overly aggressive behaviors as a way of safeguarding against being raped. Genderqueer people often follow a series of …

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Journal Articles

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Given severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an Immigration Judge (IJ). Although these IJs preside over relatively formal on-the-record hearings and are understood to exercise “independent judgement,” …

Progressive Punitivism: Notes On The Use Of Punitive Social Control To Advance Social Justice Ends, Hadar Aviram

Buffalo Law Review

No abstract provided.

Secrecy & Evasion In Police Surveillance Technology, Jonathan Manes

Journal Articles

New technologies are transforming the capabilities of law enforcement. Police agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the Internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically …

Time-In-Cell 2019: A Snapshot Of Restrictive Housing Based On A Nationwide Survey Of U.S. Prison Systems, Alexandra Harrington, Leann Bertsch, Wayne Choinski, Kevin Kempf, John Baldwin, Harold Clarke, Bob Lampert, Rick Raemisch, Stephen Sinclair, Dean Williams, Judith Resnik, Anna Vancleave, Zal Shroff, Jonathan Petkun, Brian Highsmith, Atticus Ballesteros, Jaster Francis, Eli Feasley, Molly Petchenik, Jaclyn Willner, Arianna Zoghi

Other Scholarship

No abstract provided.

Reforming Restrictive Housing: The 2018 Asca-Liman Nationwide Survey Of Time-In-Cell, Judith Resnik, Anna Vancleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine Mccarthy, Jenny Tumas, Annie Wang

Other Scholarship

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of …

Caged In: The Devastating Harms Of Solitary Confinement On Prisoners With Physical Disabilities, Jamelia N. Morgan

Buffalo Human Rights Law Review

No abstract provided.

Parallel Enforcement And Agency Interdependence, Anthony O'Rourke

Journal Articles

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships …

Ending The Internal Affairs Farce, Rachel Moran

Buffalo Law Review

No abstract provided.

Remedial Discretion In Constitutional Adjudication, John M. Greabe

Buffalo Law Review

No abstract provided.

Sexual Epistemology And Bisexual Exclusion: A Response To Russell Robinson's "Masculinity As Prison: Race, Sexual Identity, And Incarceration", Michael Boucai

Journal Articles

No abstract provided.

The Solitary Confinement Of Juveniles In Adult Jails And Prisons: A Cruel And Unusual Punishment?, Anthony Giannetti

Buffalo Public Interest Law Journal

No abstract provided.

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …