Introduction
Cardozo Law Review has, for the first time, collected all of the
articles about the criminal legal system in Volume 42 into one issue. I am thrilled to have the opportunity to frame this issue with some thoughts on criminal legal scholarship.
by Kate Levine
Article
Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a
person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than
150 laws targeting collateral consequences in 2019 alone.
But what happens when these paths to second chances are littered with
learning, compliance, and psychological costs? The people who most need these new
opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these
hurdles, people with fewer resources—the population that would most benefit from
the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program:
certificate laws that remove employment barriers.
Building on recent research identifying the low usage rates of petition-based
second-chance programs, this Article catalogs and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely
to access these interventions. Second-chance programs like employment certificates
that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context
of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance
initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit into the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.
by Cara Suvall
Article
Law enforcement officers around the country are accused of
misconduct every day. Their misconduct is alleged and documented in the form of civilian complaints, internal affairs reports, performance reviews, disciplinary board findings, body camera footage, and other records. These misconduct records contain information that is arguably
both relevant to the public’s interest in holding law enforcement officers accountable and personal to the officer. The question of who may access these records is highly controversial and hotly disputed. Laws protecting misconduct records from disclosure are often enacted at the behest of law enforcement unions who claim that public access would seriously harm officers in the form of loss of privacy, damage to
reputation, and even physical danger via retaliation. Conversely, transparency advocates argue that preventing public access to these
records disincentivizes reform and creates environments where abusive departments and officers remain unaccountable.
by Rachel Moran* and Jessica Hodge**
Article
Plea bargaining happens in almost every criminal case, yet there is little
empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports
on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.
The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” This is a theory that some defenders embrace and others reject. Describing the factors they believe to be important in plea negotiations, some public defenders—those who emphasize the importance of collateral consequences or the pre-trial custody of their clients—do
not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework. These defense attorneys might ask the prosecutor to dismiss
charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome. Such dispositions based on equitable factors, many of
them related to the larger life circumstances of the defendant, point the prosecutor toward an outcome that is independent of any likely trial result or post-trial
sentence. These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial. Multivariate analysis of the survey answers allows us to identify which attorney background factors correlate with each of the
distinct theories of negotiation.
After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices. Here, defenders’ self-reported
bargaining methods do not measure up to their declared aspirations. Their own descriptions of the fact investigations and legal research they typically perform
ignore some viable outcomes that their clients might prefer. Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap
between theory and practice.
by Ronald F. Wright,* Jenny Roberts,** and Betina Cutaia Wilkinson***
Article
Criminal history is all-important in the criminal and immigration
systems. But these systems have little substantive information about past crimes. This creates a paradox. A person’s past convictions dictate
whether they will face new criminal charges, make bond, suffer a lengthy sentence, or be targeted for deportation, among many other
consequences. Yet, despite the vital role that criminal history plays in
these decisions, judges and prosecutors know very little about the prior crimes of the people they process. Factually rich accounts of a person’s convictions are rarely available. The system instead relies on rap sheets that record only basic facts—the charge, the date of conviction, and the nominal sentence. Because of this information poverty, the criminal and immigration systems employ criminal history heuristics when determining the consequences of prior convictions. Such heuristics include the number of past convictions, the types of crimes charged, and the apparent sentences. These heuristics are inputted into mechanical formulas like “three strikes” laws, sentencing guidelines, and bail algorithms. Such formulas translate past conviction information into often-severe consequences like
deportations and mandatory minimum sentences. This mechanistic way of using criminal history creates many serious problems in our system. It
causes irrational and unjust case outcomes, renders the system arbitrary to the people being processed, exacerbates systemic racism, and makes access to a competent lawyer vital. This Article diagnoses these problems
and proposes a variety of possible reforms.
by Eric S. Fish
Article
In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede
the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s
Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. Changing the language is thus a reasonable reform. But the usage matters also because of the underlying impulses, assumptions, and realities that it reveals. An exploration of those helps to illuminate broader concerns that require systemic, rather than merely linguistic, change.
by Anna Roberts
Note
In July of 2019, Christopher Tapp stepped out of an Idaho courthouse as a free man, after spending over twenty years in prison for a crime he did not commit. Mr. Tapp was convicted in 1998 of the rape and murder of Angie Dodge, despite the fact that DNA testing excluded him prior to trial. After more than thirty hours of interrogation, Mr. Tapp confessed to the crime. That confession, however, was later determined to be coerced. Mr. Tapp was sentenced to life in prison plus
fifteen years, his conviction was upheld on appeal, and his petitions for post-conviction relief were denied. Post-conviction DNA testing not only affirmed Mr. Tapp’s innocence but matched to the true
perpetrator: Brian Dripps. By the time he was exonerated, even Ms.
Dodge’s family believed Mr. Tapp was innocent and had joined the fight to exonerate him. At the post-conviction hearing, both the judge and the district attorney supported vacating Mr. Tapp’s conviction—that is, treating the original conviction as if it never happened. If Mr. Tapp had lived in Alabama, however, rather than Idaho, Mr. Tapp would likely still be in prison.
by Trena Riley
Note
Day One: a federal criminal jury trial begins with twelve jurors and
two alternates. Day Two: the court excuses one of the twelve jurors for
failing to report for duty and impanels one of the alternate jurors. Day Four: the court excuses another juror for medical reasons and impanels the other alternate juror. Days Five through Ten: the parties—the defendant and the government—continue to try the case before the remaining twelve jurors. Day Eleven: the court informs the parties that the trial will likely conclude on Day Twelve. Sometime Between Days Eleven and Twelve: one of the remaining twelve jurors contacts the court and explains that he must accompany his wife to the hospital and will not be able to complete his jury duty. As a result, the court asks the parties whether they agree to finish the trial with the remaining eleven jurors. The defendant agrees, but the government does not. Day Twelve:
the court declares a mistrial.
by Zachary Buda
Note
On March 18th, 2018 at 9:13 p.m., a man called 911 to report an
individual breaking windows and attempting to jump a fence into a
backyard in South Sacramento, California. This call prompted both an aerial and a ground pursuit, which ended with two officers firing
approximately twenty shots at the suspect. At 9:26 p.m., that
individual, twenty-two-year-old Stephon Clark, lay dead in his
grandmother’s backyard. Body camera audio following the shooting captures one of the officers claiming he saw “something in his hands, it looked like a gun from our perspectives.” Stephon Clark was unarmed; only a cell phone was recovered from the scene.
by Alison Goldman
