Criminal Procedure Commons^™

Holding The Big House Accountable: The Sixth Circuit Concludes A Pretrial Detainee's Fourteenth Amendment Deliberate Indifference Claim Is A Wholly Objective Determination, Noah Speitel

Villanova Law Review

No abstract provided.

Clemency: A Tool For Extreme And Discriminatory Sentences, Kathryn Miller, Jonathan H. Oberman, Cardozo Criminal Defense Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

A Comparative Analysis Of Criminal Justice Systems In The United States And Scandinavia, Tyler Truelock

Ohio Northern University International Law Journal

No abstract provided.

“He’S In Jail Now And I Don’T Feel Bad”: Analyzing Sureties’ Decisions To Report Bail Violations, Rachel Schumann, Carolyn Yule

International Journal on Responsibility

The control, supervision, and rehabilitation of criminalized people often falls on the shoulders of non-state agents and organizations. Surety bail releases are a clear embodiment of this trend, as the courts call upon relatives, friends, and employers to supervise the pre-conviction activity of people accused of a crime. According to the law, sureties must report all bail violations to the police; the resulting diffusion of responsibility is said to increase the penal state’s power and control over criminal justice-involved individuals while minimizing reputational risks. Yet how sureties carry out this role in the community remains unexplored. Using data from 36 …

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …

Walking With Shadows And Phantoms: The Presumption Of Innocence And Bail Determinations, Davis Badger Anderson

Buffalo Law Review

One-hundred and twenty-eight years after “the Supreme Court of the United States had an opportunity to clear up the confusion and ambiguity that hang[s] over the common talk about the presumption of innocence,”1 the confusion persists. This lingering confusion is at its most stringent in federal bail determinations where, despite legislative intent, precedent, and logic to the contrary, it is invoked to discount the weight of the evidence against the defendant in deciding what conditions will secure presence at trial or safety to the community. Furthermore, the presumption’s path from an instrument of proof to its status as a right …

The Doom Loop: The Subtle Art Of Fear-Based Messaging In Politics, Kristen Foley

GGU Law Review Blog

Doom Loop (noun) – A scenario in which one negative development causes another negative development, which then makes the first problem worse. A vicious cycle.

Fear-based messaging is a compelling political tool that has been used to shape policy often at the expense vulnerable communities. A growing example of this has targeted governing practices in San Francisco. San Francisco has seen a barrage of criticisms lately, focused on blatant crime and open-air drug use among its streets. Local and national news have made these topics the centerpiece of a “doom loop” narrative that is plaguing a once thriving and desirable …

Perlmutter Center For Legal Justice At Cardozo Law Asks Ny Governor Kathy Hochul To Sign Wrongful Convictions Act, Josh Dubin

Perlmutter Center Letters

The Law expands legal recourse for those wrongfully convicted including the right to counsel and the ability to challenge flawed scientific evidence.

The Perlmutter Center for Legal Justice at Cardozo Law has asked New York State Governor Kathy Hochul to sign the Challenging Wrongful Convictions Act.

The law (S.7548) was passed by both houses of the New York State legislature. If signed, it will expand legal recourse for those wrongfully convicted in New York including the right to counsel, the ability to challenge flawed or outdated scientific evidence, gives innocent people who pleaded guilty the right to apply for post …

Underage And Unprotected: Federal Grand Juries, Child Development, And The Systemic Failure To Protect Minors Subpoenaed As Witnesses, Lucy Litt

University of Cincinnati Law Review

Grand juries in the United States were originally intended to protect people from unwarranted criminal prosecution by the government; however, criticism of federal grand juries in the U.S. throughout the past five decades demonstrates that these deliberative bodies protect prosecutors at the expense of the people subjected to their investigations. Worse still, federal grand jury proceedings circumvent fundamental constitutional rights, direct judicial oversight, and many of the procedural protections of criminal trials; they enable prosecutors to strip unaccused individuals subpoenaed solely for witness testimony of their safety, rights, and liberty. Prosecutorial misconduct has received increasingly widespread attention, especially in recent …

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini

Pepperdine Law Review

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Pace Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Innocent Until Proven Mentally Incompetent., Jade Smith

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

The Death Penalty Seals Racial Minorities’ Fate: The Unfortunate Realities Of Being A Racial Minority In America., Sarah Garcia

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Public Defenders As Gatekeepers Of Freedom, Alma Magaña

Articles

Nearly half a million people are currently held in pretrial detention across the United States. Legal scholarship has explored many of the actors and factors contributing to the deprivation of freedom of those presumed innocent. And while the scholarship in these areas is rich, it has primarily focused on certain system actors—including judges, prosecutors, and profit-seeking sheriffs—structural concerns, such as the role race plays in who is being held in pretrial detention, or critiques of the failed promise of algorithms to deliver on bias-free bail determinations. But relatively little scholarship exists about the contributions of public defenders to this deprivation. …

A Call For Effective Leniency: How The Circuit Split Regarding The Prison Mailbox Rule Fails To Properly Alleviate Issues For Prisoners, Shelby E. Parks

Mississippi College Law Review

The prison population has long been an overlooked segment of society. This is particularly true when it comes to pro se litigants within the federal prison system. A pro so litigant is someone involved in litigation, whether civil or criminal, and is representing themselves instead of being represented by an attorney. In other words, pro se prisoners do not have the aid of counsel at their disposal. Although it is an individual’s constitutional right to represent themselves, it can come at a cost, especially when it comes to understanding the nuances of civil or criminal court procedure. For pro se …

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

Introduction To Criminal Justice, Sindee Kerker

Lynn University Digital Press Books

This iBook, replete with innovative learning tools, explores the three components of the American criminal justice system: police, courts, and corrections. Divided into ten chapters, the highly interactive text discusses a wide range of topics. Subjects like what constitutes a crime, constitutional rights, contemporary lawn enforcement issue, administration of justice, the court system, and various forms of corrections: jails, prisons, intermediate sanctions, and the juvenile justice system are explored. Recurring components of the iBook include: introductory high-profile media cases which, YouTube videos detailing various criminal justice career options (over 20), a Fact vs. Fiction section highlighting common myths and misperceptions …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …