An Uneasy Dance with Data: Racial Bias in Criminal Law – Postscript (Comment) by Joseph J. Avery

Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice. The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.

Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.

What’s in a Claim? Challenging Criminal Prosecutions Under the FTAIA’s Domestic Effects Exception – Note by Jay Kemper Simmons

Americans recently awoke to a startling revelation: “Our country is getting ripped off.” Indeed, the purportedly deleterious effects of international trade on the United States domestic economy have claimed top billing in President Donald Trump’s nascent “America First” agenda. As the White House publicly excoriates international free trade for the first time in recent memory, global trade deals and domestic tariffs are cast in stark relief. China and Mexico, along these lines, are cast as chief culprits in a system of international exchange allegedly designed to subjugate American workers to nefarious foreign interests. Overall, recent politics underscore the practical importance of, and interdependence between, competition and cooperation in international economic regulation.

In the arena of hard-nosed international competition, it’s all fun and games––until somebody starts a trade war. But beyond the scope of trade deals and tariffs, sovereign states’ domestic antitrust laws are also critical regulatory levers. Americans at the Antitrust Division of the Department of Justice and the Federal Trade Commission have the power to influence incentives in markets across the globe. For example, although domestic by nature, U.S. antitrust laws do not exclusively apply to conduct in domestic markets—the Sherman Act may extend far beyond American shores to activities conceived and executed abroad.

An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments – Note by Amber Heron

How can one be expected to demonstrate something they are incapable of, and what if that something meant the difference between freedom and remaining in prison? Thousands of inmates in California face this issue, and many are kept incarcerated for life without any recognition of their cognitive capabilities.

Take Maria’s story, for example; she is a client I became familiar with as a student working in the University of Southern California Gould School of Law’s (“USC”) Post-Conviction Justice Project (“PCJP”). Maria had extensive cognitive impairments that went undiscovered while incarcerated in a California prison for nearly three decades. Because of this, Maria was denied parole an astounding six times with the parole board citing lack of “insight” each time. Maria’s continued denials persisted despite state-issued psychological evaluations concluding that her intellectual functioning was minimal.

Unfortunately, Maria’s predicament is not uncommon. There are several similarly situated inmates who are unable to effectively advocate for themselves due to their cognitive impairments, yet they are not provided with necessary accommodations. As a result, individuals are denied parole even though they do not pose a current danger to society. This culminates in the gravest deprivation of liberty without due process—denial of their freedom.

“Moore” Than Just a Number: Why IQ Cutoffs Are an Unconstitutional Measure for Determining Intellectual Disability – Note by Courtney Johnson

Bobby James Moore was twenty years old when he “fatally shot a store clerk” while robbing a grocery store in April 1980. On paper, this is a tragic felony murder, but behind the scenes lies a different story. Bobby was not a typical twenty-year-old; he did not understand “the days of the week, the months of the year, [or] the seasons.” Bobby could barely tell time, and he could not understand standard measurements or that subtraction is the opposite of addition. Bobby suffered an “abuse-filled childhood.” Bobby dropped out of high school due to “his limited ability to read and write,” and he lived on the streets after being kicked out of his home for being “stupid.” Bobby is intellectually disabled, and despite the evidence put forth demonstrating his disability, he was sentenced to death pursuant to a set of factors used by a Texas court; these factors are largely based on stereotypes and caricatures from literature. As the United States Supreme Court decided in 2017, this was a gross violation of the Eighth Amendment’s protection against cruel and unusual punishment to rely on “wholly nonclinical” factors rather than the “medical community’s diagnostic framework.”

Eyewitness Identifications: Recommendations to the Third Circuit – Note by Brady Witbeck

Just before two o’clock in the afternoon on October 22, 1991, two high school students, Chedell Williams and Zahra Howard, ascended the steps of the Fern Rock train station in North Philadelphia, planning to take a train back to their homes. Seemingly out of nowhere, two men appeared, blocked the girls’ way up to the station, and demanded Chedell’s earrings. Terrified, the girls bolted in opposite directions. The two men followed Chedell. They soon caught her and tore out her earrings. Then “[o]ne of the men grabbed her, held a silver handgun to her neck, and shot her.” The perpetrators fled. Chedell was pronounced dead within the hour.

Police soon focused their investigation on James Dennis, who lived relatively close to the train station in the Abbotsford Homes projects. Detectives would later explain that they heard rumors that Dennis was involved in the shooting, though they were at that time “unable to identify the source of the rumors.” The detectives obtained preliminary descriptions of the perpetrators from three eyewitnesses. These initial descriptions did not align well with Dennis’s actual appearance. Nonetheless, a few eyewitnesses identified Dennis during subsequent photo lineups, live lineups, and the trial. In presenting the government’s case, the prosecution relied heavily on these eyewitness identifications. Dennis was found guilty of “first-degree murder, robbery, carrying a firearm without a license, criminal conspiracy, and possession of an instrument of a crime.” He was sentenced to death.

At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants – Note by Tim Kolesk

This Note seeks to address how the sprawl of GPS technology in our lives has permeated into the courts and affected the rights of criminal defendants. The first Part provides general background about the technology and its broader role in the court system, while the second Part examines GPS and the law. The second Part will look at the rules of evidence and the hurdles––however minimal––that GPS evidence may need to overcome when admitted at trial. Because GPS technology, while common, is still subject to errors and tampering, the evidence should be required to be properly authenticated. A GPS record can be––and has been––viewed as a kind of a statement, reporting where a particular person was at a particular time. For this reason, courts have considered the evidence through hearsay analysis and admitted it through the business records exception. Additionally, the second Part discusses the constitutional issues that arise with the introduction of GPS evidence. Specifically, the Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine the person who makes a report submitted at trial. GPS data can be considered a statement against a criminal defendant, about where the defendant was at a particular time––e.g., when a crime was being committed. The issue becomes whether a criminal defendant is entitled to “confront” the makers of these statements. Finally, the third Part of this Note concludes with concerns of how to properly deal with GPS tracking technology, considering how far it can reach, in light of the general public’s seeming non-concern with the level of government use of it. The fact that most of us carry GPS-enabled smartphones in our pockets every day gives rise to questions about the government’s ability to track us and what procedural safeguards should be maintained when evidence from these devices is admitted against an individual at trial.

Mass Monitoring – Article by Avlana K. Eisenberg

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new uses of EM have complicated this narrative. The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.” The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

Juvenile Justice: Searching for a Flexible Alternative to the Strict and Over-Inclusive Transfer System for Serious Juvenile Offenders – Note by Thucvy H. Nguyen

This Note examines the experiences of children in the juvenile and criminal justice system with the purpose of finding an alternative to keeping Geyser and Weier in the criminal system. Part I provides a summary of Geyser and Weier’s pending case, which has been pieced together from various news outlets. Part II looks at the development of the juvenile justice system and the transfer system, with an in-depth analysis of the three primary waiver mechanisms. Part II also examines the Wisconsin laws that Geyser and Weier are subject to, and the primary ways in which the juvenile justice system differs from the criminal justice system. Part III describes how the current justice system in America has failed to meet the needs of juvenile offenders. Part IV discusses the reasoning involved in U.S. Supreme Court decisions that have treated juvenile offenders differently than adult offenders. Part IV also presents studies that explain why the development of children’s brains provides support for this differential treatment. Part V analyzes various alternatives to the prevailing regime which keeps juvenile offenders in the juvenile justice system or transfers them to the criminal justice system. Lastly, Part V also proposes that blended sentencing, while still an imperfect solution, is the best alternative to automatically subjecting juveniles who commit violent offenses to the criminal justice system. With respect to Anissa Weier, blended sentencing would be the best alternative, because her situation could be reevaluated once she reaches the upper age limit of juvenile court jurisdiction. In the case of Morgan Geyser, under a blended sentencing regime, she could be transferred to the mental health courts and placed in a mental health facility within a designated children’s ward to receive treatment for schizophrenia, as both the juvenile and criminal justice systems are ill-equipped to house juvenile offenders with serious mental illnesses.

How Vague is too Vague?: Resurrecting the Void-for-Vagueness Doctrine in the Context of the Armed Career Criminal Act – Note by Ava Miller

In Georgia, Shawntrail Lee was convicted of possessing a firearm as a felon, —a crime that warranted a sentence of roughly three to four years in prison under the Federal Sentencing Guidelines. However, Lee’s prescribed sentencing range increased to a minimum of fifteen years under the Armed Career Criminal Act (“ACCA”) because his criminal history included three other crimes that the district court classified as “violent felon[ies].” Lee appealed his sentence, arguing that his predicate conviction of conspiracy to commit armed robbery did not constitute a “violent felony,” and the Eleventh Circuit Court of Appeals agreed, vacating his sentence.

Conversely, in North Carolina, Demontrell White was convicted of possessing a firearm as a felon and was sentenced to fifteen years in prison after the Fourth Circuit Court of Appeals determined that his prior conviction of conspiracy to commit robbery with a dangerous weapon was a “violent felony” under the ACCA.

Can Henderson or Lawson Repair the Golden State’s Less-Than-Golden Treatment of Eyewitness Identification Reform? A Call for Judicial Intervention in California – Note by Morgan Schwartz

Part I of this Note provides a brief background regarding the history of the Supreme Court’s treatment of eyewitness identification, the current standard of admissibility of eyewitness identification testimony at both the federal and state levels, and the status of scientific research into eyewitness identifications today. Part II describes the changes that two states, New Jersey and Oregon, have made to their judicial frameworks to reflect the current state of empirical research into the dangers of eyewitness misidentification. This Part will also highlight how these new tests differ from the Manson framework set forth by the Supreme Court in the 1970s, which is the prevailing test for admissibility of eyewitness evidence, on which California’s existing framework is modeled. Part III will examine the pros and cons of New Jersey and Oregon’s approaches, especially in light of their underlying goals of deterring improper police conduct and obtaining reliable verdicts. Part IV describes the history of eyewitness identification reform in California and suggests that in states like California, where attempts to pass legislation modifying police eyewitness identification procedures have been unsuccessful, judicial reform similar to that of Oregon’s Lawson framework is necessary to ensure the integrity of the criminal justice system.