Law Enforcement and Corrections Commons^™

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …

The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict

Washington and Lee Law Review

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing …

How To Get Away With Murder: When A White Male Police Officer Kills A Young Black Person, Mitchell F. Crusto

Washington and Lee Law Review Online

Systemic racism in policing allows police officers, in particular white men, to continue to perpetuate the violent killings of Black people. This violence is not accidental. Rather it is intentional and allowed to continue due to a failure by the Supreme Court to hold police officers accountable. This Article explains how the doctrines of qualified immunity, willful intent, and objective reasonableness, as condoned by the Court, allow police officers to “get away with murder.”

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Common Prosecutor, Melanie D. Wilson

Scholarly Articles

This symposium piece stems from the Loyola University of Chicago Law Journal’s Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences …

The New Jim And Jane Crow Intersect: Challenges To Defending The Parental Rights Of Mothers During Incarceration, Carla Laroche

Scholarly Articles

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their …

Neurorights For Incarcerated Persons: Should We Curb Inflation?, Shannon Fyfe, Elizabeth Lanphier, Andrew Peterson

Scholarly Articles

We support protecting privacy and freedom, both generally and in carceral settings. Yet we remain skeptical that expanding so-called “neurorights” achieves these aims (cf. Bublitz 2022). Instead, it may inflate human rights in ways that diminish the ability to enforce them, overlook the ways in which incarceration is at odds with other human rights, and raise questions of whether neurotechnologies can violate such rights in the ways Ligthart et al. imply.

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Senseless Sentencing: The Uneven Application Of The Career Offender Guidelines, Christopher Ethan Watts

Washington and Lee Journal of Civil Rights and Social Justice

Federal appellate courts are currently split on the definition of “controlled substance” in the career offender guideline, with one side using federal law to define the phrase, and the other side allowing standalone state law offenses to trigger the guideline. Allowing state law to define the phrase allows countless substances Congress never intended to penalize to be able to trigger one of the most severe penalties in the Sentencing Guidelines. This Note assesses the landscape of the circuit split and analyzes the arguments for and against federally defining “controlled substance offense.” This Note then proposes a novel way to resolve …

As Fires Blaze Through California, Could They Blaze A New Path For Incarcerated Individuals: A Model For Back-End Abolition, Jacquelyn Kelsey Arnold

Washington and Lee Journal of Civil Rights and Social Justice

This Note provides a critique on the current system of prison labor through the lens of the California wildfires and the lack of inmate labor due to early release in the wake of COVID-19. This Note provides an overview of the relevant history of the Thirteenth Amendment, contextualizes mass incarceration as a product of the “War on Drugs” in the United States, and consequently, discusses the significant and dramatic expansion of the prison industrial complex and the use of prison labor as a growing source of production labor. It concludes with a recommendation for a provisional back-end abolition model that …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Barrett Lain

Washington and Lee Law Review Online

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Pretrial Custody And Miranda, Kit Kinports

Washington and Lee Law Review

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda—in Shatzer’s case while he was living among the general prison population and in Fields’s case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. This Article maintains that …

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Washington and Lee Law Review Online

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states’ modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Scholarly Articles

A federally funded universal representation program can serve as a practical first step toward the abolition of immigration detention and the other harsh enforcement mechanisms that are utilized today. While abolition is typically an ideology espoused by a small subsection of the general population, its purpose can be achieved through a less partisan and broader reaching ideal -- fiscal efficiency and responsibility. By demonstrating that the provision of counsel and other wrap around services is significantly less costly than immigration detention, while also showing that providing counsel and wrap around services is an extremely effective way to ensure compliance, this …

Parole In Virginia, 2021: The Final Report Of The Washington And Lee Law Parole Representation Project, David I. Bruck, Bernadette M. Donovan, Matthew L. Engle

Scholarly Articles

The Virginia Capital Case Clearinghouse (“VC3”) was a yearlong ten-credit legal clinic at Washington and Lee University School of Law. Professor William Geimer created VC3 to assist in the defense of Virginia defendants who were facing the death penalty in the state’s trial courts. In 2017, recognizing both the waning need for capital defense support in Virginia and the almost total lack of legal representation for parole-eligible Virginia prisoners, VC3’s then-director, David Bruck, added the Parole Representation Project to VC3’s mission. Each year since then, VC3 students have represented at least sixteen prisoners in proceedings before the Virginia Parole Board …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …

The U.S. Sentencing Commission’S Recidivism Studies: Myopic, Misleading, And Doubling Down On Imprisonment, Nora V. Demleitner

Scholarly Articles

Recidivism has now replaced rehabilitation as the guiding principle of punishment. It is increasingly used to steer criminal justice policy despite research limitations. It serves as a stand-in for public safety, even though lengthy incarceration may have criminogenic and other negative ramifications for family members and communities. Yet the U.S. Sentencing Commission emphasizes recidivism. It emphasizes what amounts to preemptive imprisonment for those with long criminal records to prevent future offending.

The Commission’s work should come with a warning label. First, its recidivism studies should not be consumed on their own. Instead they must be read in conjunction with U.S. …

Habeas Corpus, Conditions Of Confinement, And Covid-19, Allison Wexler Weiss

Washington and Lee Journal of Civil Rights and Social Justice

Incarcerated individuals, worried about contracting the disease in prison without adequate healthcare and often serious health risks, have filed lawsuits challenging their incarceration in the age of COVID-19. Overall, very few have been successful. This virus has changed our world and the reality for those in prison. The traditional legal avenues available to incarcerated individuals to challenge their continued confinement are often ill-equipped to allow for comprehensive and expedited review. The author argues that during these unprecedented times, courts should recognize that the “duty to defend the Constitution” requires them to grant motions for habeas corpus by the most vulnerable …

Emergency Parole Release For Older Parole-Eligible Doc Inmates, David I. Bruck

Scholarly Articles

Professor Bruck writes to Secretary Moran and Chairwoman Bennett to urge them to protect elderly Virginia prison inmates from the risk of death from COVID-19 by granting immediate parole release to as many over-60 parole-eligible prisoners as possible, upon a showing that they are at low risk to re-offend, and have a supportive home to go to once released.

Federal Sentencing: A Judge’S Personal Sentencing Journey Told Through The Voices Of Offenders He Sentenced, Mark W. Bennett

Washington and Lee Journal of Civil Rights and Social Justice

Federal sentencing is a tragic mess. Thirty years of conflicting legislative experiments began with high hopes but resulted in mass incarceration. Federal sentences, especially in drug cases, are all too often bone-crushingly severe.

In this Article, the Honorable Mark Bennett, a retired federal judge, shares about his journey with federal sentencing and his strong disagreement with the U.S. Sentencing Guidelines by telling the stories of some of the 400 men and women he sentenced during his twenty-five years as a federal judge.

Reforming Federal Sentencing: A Call For Equality-Infused Menschlichkeit, Nora V. Demleitner

Washington and Lee Journal of Civil Rights and Social Justice

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment. Sentencing has long been unfair to minority defendants, African-Americans in particular, though the guidelines have in part mitigated racial disparities. Still the injustices perpetuated through …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Washington and Lee Journal of Civil Rights and Social Justice

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal …

Technology’S Influence On Federal Sentencing: Past, Present, And Future, Matthew G. Rowland

Washington and Lee Journal of Civil Rights and Social Justice

The comprehensive reforms that govern today’s federal sentencing processes were fashioned nearly forty years ago. Those reforms were designed to address concerns regarding the effectiveness, transparency, and fairness of the preexisting indeterminant sentencing system. Today, criticisms are mounting against the very reforms that were once held out to save the sentencing process. The more determinant system is being accused of being biased against minorities, overly harsh, and costly.

This Article explores how the criminal justice system might look to technology and build on the practical experience from the indeterminant and determinant systems. Tools such as Artificial Intelligence (AI) can help …

Crime And Punishment: Considering Prison Disciplinary Sanctions As Grounds For Departure Under The U.S. Sentencing Guidelines, Madison Peace

Washington and Lee Journal of Civil Rights and Social Justice

There are currently over 175,000 federal inmates in the United States, 146,000 of whom are held in custody by the Federal Bureau of Prisons. When an inmate in federal prison commits a federal crime, he can be both sanctioned by the Federal Bureau of Prisons and referred to a United States Attorney for prosecution of the crime in federal district court. In the federal district court, a judge will look to the U.S. Sentencing Guidelines as a starting point to determine an appropriate sentence.

One question that the U.S. Sentencing Commission has not addressed, and on which federal appellate courts …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae C. Quinn, Grace R. Mclaughlin

Washington and Lee Journal of Civil Rights and Social Justice

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …