Everyone knows that going through puberty is associated with a multitude of changes: physical, mental, hormonal, etc. Fewer people know that when and how fast one goes through puberty can also be associated with changes to one’s legal rights. The Supreme Court of the United States held, in the landmark case ofJ.D.B. v. North Carolina, that there were many “commonsense conclusions” that could be drawn

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their deci-sions. The problem with uncontested elections has been widely recognized, but little

A state prisoner must comply with state procedural rules to obtain federal judi-cial review of one’s detention or sentence of death, but what if a severe psychiatric impairment or illness prevents the prisoner—or one’s counsel—from complying with those rules? Federal habeas courts have not agreed on whether this type of impairment can excuse a procedural default. This Article argues that courts refus-ing

The Supreme Court’s 2020 landmark decision inRamos v. Louisianafinally con-firmed that the Fourteenth Amendment incorporates the Sixth Amendment’s guarantee of unanimous verdicts in criminal jury trials against States, ending the last vestiges of Jim Crow-era juror racial disenfranchisement remaining in two States’ criminal procedures. It was not a shocking decision, and it was well past due: 400 years

“I literally could not put my phone down. Whether I got shot or not, this needed to be documented.” Those words were spoken by the bystander who used their smartphone to capture the moment that police in Austin, Texas opened fire on peaceful protestors seeking medical assistance for 20-year-old Justin Howell. An officer had shot Howell in the back of the head with “nonlethal” beanbag rounds.The video

In October 2020, the Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”) announced the largest Foreign Corrupt Practices Act (“FCPA”) enforcement action of all time against Goldman Sachs, the parent company of Goldman Sachs Malaysia and a first-time FCPA violator, at $1.66 billion.This enforcement action made a statement, and it signals where the Agencies may take future FCPA

As support has grown to reduce the footprint of criminal law by defunding the police, volunteer prosecution—a practice that has garnered little attention—continues to expand criminal law’s footprint. Volunteer prosecutors come in many different forms, but their core similarity is that they all prosecute crime without getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although

We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We have conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary

In his Distinguished Lecture for the Academy for Justice,Are Police the Key to Public Safety?: The Case of the Unhoused, Barry Friedman contends that America needs to rethink the meaning of “public safety.” Guaranteeing public safety is arguably the most foundational responsibility of government. Yet a too narrow understanding of what public safety requires may be at the root of our country’s overreliance

This Essay explores the ways in which the division of funding and responsibility for various social services across local, state, and federal governments disincentivizes sound approaches to societal problems—particularly when it comes to addressing the needs of the unhoused. Whereas local governments primarily are responsible for funding and directing the police, most other services, including housing

In “Are Police the Key to Public Safety?: The Case of the Unhoused,” Barry Friedman argues that one of the problems with policing in the United States is that it encompasses too narrow a view of public safety. In the case of homelessness, this narrow view fails to understand that providing shelter and subsistence to the unhoused is providing them with a basic form of safety as well. By this view, enforcing

Nationwide, America’s middle and high school students face the threat of arrest and incarceration as a consequence of their conduct at school. Around the country, kids have been handcuffed and criminally prosecuted for things like feigned burp-ing, leaving class without permission, and getting off a bus too early. Termed the “school-to-prison pipeline,” this phenomenon has drawn increasing attention

The real engine of the Supreme Court’s blockbuster decision inMorrison v. National Australia Bank Ltd.was not the Court’s much-discussed invigorated presumption against extraterritoriality. On the ground, what matters to investors, companies, and judges is the oft-ignored secondMorrisonruling: the creation of a “focus” analysis for separating actionable “domestic” section 10(b) claims from foreclosed

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing. The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give

Criminal defense attorneys often engage in plea negotiations on behalf of their clients without knowledge of material, exculpatory information that the prosecution may possess, placing the defense at an unfair disadvantage. The recent proliferation of electronically-stored information (“ESI”) is further exacerbating this informational imbalance. Without proactively accounting for ESI in criminal discovery

In October 2017, Mario Nelson Reyes-Romero was indicted for unlawful reentry into the United States.During his prosecution, it became apparent that the Department of Homeland Security (DHS) officers who had conducted his initial removal proceedings in 2011 had engaged in serious misconduct. The evidence indicated that Reyes-Romero may have completed a form waiving his right to a hearing before the

“Proxy crimes” is a phrase loosely used to refer to conduct that is punished only as a means to target other harmful conduct. Many criminal law scholars find the criminalization of this type of conduct unjustifiable from a retributivist perspective, while others note that proxy criminalization can contribute to mass incarceration and overcriminalization. Given the importance of these problems, a systematic

Federal prosecutors’ authority in the U.S. legal system is imperial. When they act, prosecutors speak for the whole of the U.S. government across all policy-making domains. Ideally, their judgments, expressed in many thousands of retail investigative and prosecutive decisions each year, are meant to be insulated from the interests of other Executive Branch actors—even, on many accounts, from the White

Algorithms are increasingly used in the criminal justice system for a range of important matters, including determining the sentence that should be imposed on offenders; whether offenders should be released early from prison; and the locations where police should patrol. The use of algorithms in this domain has been severely criticized on a number of grounds, including that they are inaccurate and

The Fourth Amendment was enacted to prevent the government from utilizing general warrants. Instead, the government must obtain a warrant that is based on the specificity or particularity of the person, place, or thing to be searched. This approach evolved from a property-centric approach to safeguarding Fourth Amendment rights to one that is based on reasonable expectations of privacy.

Consider the following:

Prosecutors are given broad freedom to conduct their investigations throughout the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.

Because true innocence is unknowable, scholars who study wrongful convictions and advocates who seek to vindicate the innocent must use proxies for innocence. Court processes or official recognition of innocence are the primary proxy for innocence in research databases of exonerees. This Article offers an innovative alternative to this process-based proxy: a substantive checklist of factors that indicates

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal

There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration

A criminal conviction often, if not always, involves the imposition of financial penalties on a defendant. Such penalties can be catastrophically debilitating for defendants. With such severe consequences possible, it is of little wonder the Eighth Amendment’s prohibition on excessive fines exists. However, the exact state of the law surrounding the Excessive Fines Clause is anything but clear, especially

It is easy to buy into the idea that prosecuting corporate employers of undocumented workers is an equitable alternative to mass raids where undocumented workers are arrested and placed in removal proceedings. The media response after a highly publicized set of ICE raids in August 2019 reflects an emerging consensus that the DOJ and federal agencies should mete out the consequences of working without

As President Trump’s administration has cracked down on immigration enforcement, places of worship have increasingly entered the fray to offer shelter to undocumented immigrants as part of a broader sanctuary movement. Over the same period, case law surrounding religious freedoms has dramatically shifted and vastly expanded the protections afforded to religious exercise. This Note describes the legal

Read the Letter Here

This Preface provides an overview of NACDL’s 2020 Presidential Summit and Sentencing Symposium, produced in partnership with the Georgetown University Law Center and theAmerican Criminal Law Review.

On October 21, 2020, Chief Judge Colleen McMahon delivered the keynote address for the third day of the National Association of Criminal Defense Lawyers (“NACDL”) and the American Criminal Law Review’s (“ACLR”) 2020 Presidential Summit and Symposium, Prison Brake: Rethinking the Sentencing Status Quo. Her Remarks—which focused on offender resentencing since the pas-sage of the First Step Act and in

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding

In a series of Eighth Amendment cases referred to as theMillertrilogy, the Supreme Court significantly limited the extent to which minors may be exposed to extreme sentences. Specifically, in this line of cases the Court abolished capital punishment for minors and narrowed the instances when minors may be sentenced to life without parole. Only minors convicted of homicide who are found to be “in-corrigible”

The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the

Though incarceration has almost always been a core aspect of punishment in the United States, a critical consideration of the basic nature of prison environ-ments is often omitted from conversations about reform. Instead, and for myriad reasons, modern correctional policy had emphasized the punitive over the humane. In this way, America is an outlier, distinct from many other Western nations. From

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid

Correctional culture is notoriously difficult to change. Simply recognizing that there is a problem and wishing for better prisons is not enough to engender meaningful reform. It takes hard work, dedication, and continuous support from multiple stakehold-ers. At its core, however, improving carceral systems requires a team of people dedi-cated to change. The Commission on Safety and Abuse in America’s

Prosecutors are given broad freedom to conduct their investigations throughout the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal

Because true innocence is unknowable, scholars who study wrongful convictions and advocates who seek to vindicate the innocent must use proxies for innocence. Court processes or official recognition of innocence are the primary proxy for innocence in research databases of exonerees. This Article offers an innovative alternative to this process-based proxy: a substantive checklist of factors that indicates

There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration

A criminal conviction often, if not always, involves the imposition of financial penalties on a defendant. Such penalties can be catastrophically debilitating for defendants. With such severe consequences possible, it is of little wonder the Eighth Amendment’s prohibition on excessive fines exists. However, the exact state of the law surrounding the Excessive Fines Clause is anything but clear, especially

It is easy to buy into the idea that prosecuting corporate employers of undocumented workers is an equitable alternative to mass raids where undocumented workers are arrested and placed in removal proceedings. The media response after a highly publicized set of ICE raids in August 2019 reflects an emerging consensus that the DOJ and federal agencies should mete out the consequences of working without

As President Trump’s administration has cracked down on immigration enforcement, places of worship have increasingly entered the fray to offer shelter to undocumented immigrants as part of a broader sanctuary movement. Over the same period, case law surrounding religious freedoms has dramatically shifted and vastly expanded the protections afforded to religious exercise. This Note describes the legal

The personal benefit element of the tipping violation established in Dirks v. SEC has been misunderstood. Courts, the SEC, and criminal prosecutors have broadly construed it to create liability for insiders who received remote, specula-tive, immaterial, or intangible returns after disclosing confidential company in-formation. Several situations, such as an insider’s gift of confidential information

A 2018 U.S. Department of Justice report assessing data from thirty states found that eighty-three percent of those individuals released from state prisons in 2005 were rearrested within nine years. When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention. In countries around the world, restorative

Self-defense is a right so fundamental that the scholarly literature regularly refers to it asthe ancient rightorthe first civil right. But despite the right’s bedrock status in criminal law, legislators, academics, and every-day citizens alike all have strongly held—and, in fact, often strongly divergent—opinions about when it is legally (and morally) appropriate to exercise self-preferential force

No person, the Fifth Amendment promises, “shall be compelled in any criminal case to be a witness against himself.” What it means “to be a witness” against oneself has been largely settled in American law since at least 1910, when Justice Oliver Wendell Holmes wrote inUnited States v. Holtthat “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of

The protests of 2020 have jumpstarted conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and reimagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful

In 2015, the Supreme Court held inKingsley v. Hendricksonthat 42 U.S.C. § 1983 excessive force claims brought by pretrial detainees against state prison officials are measured by an objective reasonableness standard. Pretrial detainees bring § 1983 claims under the Fourteenth Amendment’s Due Process Clause because they are detained but are not yet convicted. Thus, constitutional violations under §

The Sixth Amendment’s Confrontation Clause provides criminal defendants “an opportunity for effective cross-examination” at trial. Defendants—usually through their attorneys—must be able to question adverse witnesses in person. But the mere opportunity to ask questions might not be sufficient for the defendant to ascertain favorable information from the witness or discredit the witness. And other criminal-procedure

In a criminal trial, the Sixth Amendment’s Compulsory Process Clause protects a defendant’s right to gather evidence in his favor. Similarly, the Confrontation Clause guards a defendant’s right to effectively cross-examine those who bear witness against him. At times, however, these rights collide with a witness’s assertion of the attorney-client privilege. The Supreme Court declined to decide how

A 2018 U.S. Department of Justice report assessing data from thirty states found that eighty-three percent of those individuals released from state prisons in 2005 were rearrested within nine years. When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention. In countries around the world, restorative

Self-defense is a right so fundamental that the scholarly literature regularly refers to it asthe ancient rightorthe first civil right. But despite the right’s bedrock status in criminal law, legislators, academics, and every-day citizens alike all have strongly held—and, in fact, often strongly divergent—opinions about when it is legally (and morally) appropriate to exercise self-preferential force

No person, the Fifth Amendment promises, “shall be compelled in any criminal case to be a witness against himself.” What it means “to be a witness” against oneself has been largely settled in American law since at least 1910, when Justice Oliver Wendell Holmes wrote inUnited States v. Holtthat “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of

The protests of 2020 have jumpstarted conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and reimagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful

In 2015, the Supreme Court held inKingsley v. Hendricksonthat 42 U.S.C. § 1983 excessive force claims brought by pretrial detainees against state prison officials are measured by an objective reasonableness standard. Pretrial detainees bring § 1983 claims under the Fourteenth Amendment’s Due Process Clause because they are detained but are not yet convicted. Thus, constitutional violations under §

The Sixth Amendment’s Confrontation Clause provides criminal defendants “an opportunity for effective cross-examination” at trial. Defendants—usually through their attorneys—must be able to question adverse witnesses in person. But the mere opportunity to ask questions might not be sufficient for the defendant to ascertain favorable information from the witness or discredit the witness. And other criminal-procedure