Put Down The Phone! The Standard For Witness Interviews Is In-Person, Face-To-Face, One-On-One,
2022
University of Missouri - Kansas City, School of Law
Put Down The Phone! The Standard For Witness Interviews Is In-Person, Face-To-Face, One-On-One, Sean O'Brien, Quinn O'Brien, Dana Cook
Faculty Works
Professor and capital defense attorney Sean O’Brien, private investigator Quinn O’Brien, and mitigation specialist Dana Cook team up in this article to explain why the standard for competent defense investigation requires face-to-face, one-on-one, culturally competent client and witness interviews, and why short cuts to investigation, such as telephone calls or remote video links, are counter-productive, prone to failure, and constitute substandard work. Although the primary focus of this article is on standards that apply to capital mitigation work, the problems created by remote witness interviews are not unique to death penalty work; there are persuasive arguments and authority that the …
Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy,
2022
Northwestern Pritzker School of Law
Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde
Journal of Criminal Law and Criminology
While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …
Is Juvenile Probation Obsolete? Reexamining And Reimagining Youth Probation Law, Policy, And Practice,
2022
Northwestern Pritzker School of Law
Is Juvenile Probation Obsolete? Reexamining And Reimagining Youth Probation Law, Policy, And Practice, Patricia Soung
Journal of Criminal Law and Criminology
The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried.1 But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important …
Qualified Immunity And Unqualified Assumptions,
2022
Northwestern Pritzker School of Law
Qualified Immunity And Unqualified Assumptions, Teressa E. Ravenell, Riley H. Ross Iii
Journal of Criminal Law and Criminology
Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense -- even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair …
Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof,
2022
Northwestern Pritzker School of Law
Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert
Journal of Criminal Law and Criminology
This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …
Prison Medical Deaths And Qualified Immunity,
2022
Northwestern Pritzker School of Law
Prison Medical Deaths And Qualified Immunity, Andrea Craig Armstrong
Journal of Criminal Law and Criminology
The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided. According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States. Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care. The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail …
Recalibrating Qualified Immunity: How Tanzin V. Tanvir, Taylor V. Riojas, And Mccoy V. Alamu Signal The Supreme Court's Discomfort With The Doctrine Of Qualified Immunity,
2022
Northwestern Pritzker School of Law
Recalibrating Qualified Immunity: How Tanzin V. Tanvir, Taylor V. Riojas, And Mccoy V. Alamu Signal The Supreme Court's Discomfort With The Doctrine Of Qualified Immunity, Patrick Jaicomo, Anya Bidwell
Journal of Criminal Law and Criminology
In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The …
Civil Rights Litigation In The Lower Courts: The Justice Barrett Edition,
2022
Northwestern Pritzker School of Law
Civil Rights Litigation In The Lower Courts: The Justice Barrett Edition, Aaron L. Nielson, Paul Stancil
Journal of Criminal Law and Criminology
Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation. Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such …
How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System,
2022
Northwestern Pritzker School of Law
How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty
Journal of Criminal Law and Criminology
Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich …
Risk-Based Sentencing And The Principles Of Punishment,
2022
Northwestern Pritzker School of Law
Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis
Journal of Criminal Law and Criminology
Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …
Reconceiving Coercion-Based Criminal Defenses,
2022
Northwestern Pritzker School of Law
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley
Journal of Criminal Law and Criminology
Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …
Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility,
2022
Northwestern Pritzker School of Law
Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden
Journal of Criminal Law and Criminology
Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to …
Paying For A Clean Record,
2022
Northwestern Pritzker School of Law
Paying For A Clean Record, Amy F. Kimpel
Journal of Criminal Law and Criminology
Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the …
Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases,
2022
Northwestern Pritzker School of Law
Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder
Journal of Criminal Law and Criminology
When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments …
Rethinking Prison For Non-Violent Gun Possession,
2022
Northwestern Pritzker School of Law
Rethinking Prison For Non-Violent Gun Possession, Robert Weiss
Journal of Criminal Law and Criminology
Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop …
Inefficient Mercy: The Procedural, Constitutional, And Prudential Issues That Plague Minnesota's Pardoning Process,
2022
Mitchell Hamline School of Law
Inefficient Mercy: The Procedural, Constitutional, And Prudential Issues That Plague Minnesota's Pardoning Process, Maddie Post
Mitchell Hamline Law Review
No abstract provided.
Felon Disenfranchisement: What Federal Courts Got Wrong And How State Courts Can Address It,
2022
Mitchell Hamline School of Law
Felon Disenfranchisement: What Federal Courts Got Wrong And How State Courts Can Address It, Lindsay Dreyer
Mitchell Hamline Law Review
No abstract provided.
Barring Methadone Behind Bars: How Prisons Err When Denying Methadone Treatment To Inmates With Opioid Use Disorder,
2022
Mitchell Hamline School of Law
Barring Methadone Behind Bars: How Prisons Err When Denying Methadone Treatment To Inmates With Opioid Use Disorder, Julia Durst
Mitchell Hamline Law Review
No abstract provided.
Saving The Insanity Defense: Insight Into Personality Disorders And The Necessary Elements Of The Test,
2022
Mitchell Hamline School of Law
Saving The Insanity Defense: Insight Into Personality Disorders And The Necessary Elements Of The Test, Rachel Tollefsrud
Mitchell Hamline Law Review
No abstract provided.
Police Vehicle Searches And Racial Profiling: An Empirical Study,
2022
Loyola University Chicago School of Law
Police Vehicle Searches And Racial Profiling: An Empirical Study, Stephen Rushin, Griffin Sims Edwards
Faculty Publications & Other Works
In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. …
