Law Enforcement and Corrections Commons^™

Deaf In Prison: The Courts' Failure To Remedy Ada Violations In Prisons, Ruby Grossman

Washington Law Review

The carceral system is one of the many institutions that fails to adequately accommodate individuals with disabilities. D/deaf individuals specifically face a severe lack of resources and accommodations, pervasive mistreatment, and inadequate services while incarcerated. While the Supreme Court has recognized that individuals necessarily do not retain all their constitutional rights while incarcerated, there are constitutional rights and statutory protections with which prisons are required to comply. The Americans with Disabilities Act (ADA) is one such statute. When it comes to D/deaf incarcerated individuals, the ADA requires that prisons provide reasonable accommodations so those individuals are not deprived of programs, …

What We Pretend To Be: Codifying A Right To A Religious Advisor In The Execution Chamber, Claire R. Jenkins

William & Mary Journal of Race, Gender, and Social Justice

Over the last fifty years, the Supreme Court has moved the pendulum both toward religious accommodation and away from it. After a decade of oscillating Court decisions, multiple attempts at corrective action by Congress, and widespread social activism, the Religious Land Use and Institutionalized Person’s Act, or RLUIPA, was passed in 2000. RLUIPA was designed to fortify the rights of incarcerated persons and provide clarification to the Religious Freedom Restoration Act. As of 2024, the Supreme Court has granted certiorari in only a few RLUIPA cases—and has decided even less about the application of the law to death row inmates. …

Kids, Cognition, And Confinement: Evaluating Claims Of Inadequate Access To Mental Health Care In Juvenile Detention Facilities, Lydia G. Mrowiec

William & Mary Journal of Race, Gender, and Social Justice

In the United States, almost 60,000 juveniles are incarcerated in juvenile jails and prisons every day, and, as of March 2021, at least seventy percent of juveniles in the juvenile justice system have a mental health condition. For many young adults, prison and detention centers have “become the avenue of last resort” for treatment of those mental health conditions. However, juvenile detention facilities lack the support and resources to provide adequate care, which has led to high recidivism in the juvenile population. Juveniles, and individuals on their behalf, can challenge inadequate access to mental health resources by bringing claims under …

Bond Conditions As Fourth Amendment Seizures, Rebecca Laden

Cardozo Law Review

No abstract provided.

Far-Fetched Uses Of Drug Detection Dog Alerts: A Case Note On United States V. Braddy, Daniel Kaseff

Cardozo Law Review

No abstract provided.

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga

William & Mary Journal of Race, Gender, and Social Justice

At some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states …

Breathing Room For The Right Of Assembly, Tabatha Abu El-Haj

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets.

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen J. Pita Loor

William & Mary Journal of Race, Gender, and Social Justice

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

Race-Based Remedies In Criminal Law, Ion Meyn

William & Mary Law Review

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

W(H)Ither Judgment, Elias Leake Quinn

Cardozo Law Review de•novo

Textualists complain that loose rules of statutory interpretation inject uncertainty and inconsistency into judicial resolutions of statutory ambiguity. But by employing an incomplete theory of meaning, pure textualists fail to shore up their decisions. And by disparaging the judgement necessary to navigate complex questions of meaning, they erode trust in the judicial process—the very foundation of the rule of law.

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

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

Briefs

No abstract provided.

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Uncertain Immunity: Assessing Qualified Immunity In The Context Of Post-Arrest Excessive-Force Claims Arising Prior To A Judicial Determination Of Probable Cause, J. Tyler Barton

West Virginia Law Review

No abstract provided.

A Public Health Law Path For Second Amendment Jurisprudence, Michael Ulrich

Faculty Scholarship

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

The Role Of Fault In Sec. 1983 Municipal Liability, Michael L. Wells

South Carolina Law Review

No abstract provided.

Illuminating Black Data Policing, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies. This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use …

Protecting America’S Children: Why An Executive Order Banning Juvenile Solitary Confinement Is Not Enough, Carina Muir

Pepperdine Law Review

Despite its devastating psychological, physical, and developmental effects on juveniles, solitary confinement is used in juvenile correctional facilities across the United States. This Comment posits that such treatment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause, the United Nations’ Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It likewise argues that that President Obama’s recent Executive Order banning juvenile solitary confinement is simply not a powerful enough remedy and discusses why it must be paired with Congressional legislation or Supreme Court jurisprudence if it is to …

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

The Real Homeland Security Gaps, Areto A. Imoukuede

Journal Publications

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS's vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. …

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

Proportionality And Parole, Richard A. Bierschbach

Articles

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …