New Issue: Volume 111, Issue 3

March 25 Symposium: Qualified Immunity in Courts and in Practice

Inviting Submissions to JCLC Online, Our New Feature

Capital Felony Merger

By: William W. Berry III | August 18, 2021

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” the crimes of felony murder and first-degree murder in capital cases. Just as felony murder cannot serve as a tool by which prosecutors can convert second-degree assault killings into first-degree murders, felony murder should also not serve as a tool to convert noncapital crimes into capital ones. In Part I, the Article describes the use of capital felony murder and explains its constitutional infirmities under the Eighth Amendment. Part II explains the Supreme Court’s failed attempts to apply the Eighth Amendment to capital felony murder cases and why the Court’s doctrine remains an ineffective tool to remedy these injustices. In Part III, the Article proposes a new constitutional merger doctrine for capital felony murder cases. Finally, in Part IV, the Article makes the case for adopting a capital felony merger doctrine and explores its consequences.

Missing the Misjoinder Mark: Improving Criminal Joinder of Offenses in Capital-Sentencing Jurisdictions

By: Milton J. Hernandez, IV | August 18, 2021

In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant. Joinder pervades the American criminal justice system, and some jurisdictions see joinder in more than half of their cases. Most states and the federal courts use a liberal joinder system where courts may join offenses regardless of their severity or punishment. These systems derive from judicial efficiency arguments, seeking to avoid unnecessary trials and striving to conserve time, money, and other resources. In a liberal joinder regime, the court may force a defendant to prepare for a trial in which she must simultaneously defend against a misdemeanor offense, like possession of marijuana, and a capital felony offense with a potential death sentence—even though the two charges may require completely different defense strategies. Jurisdictions should no longer broadly protect the joinder of all types of offenses in the name of judicial efficiency or juridical discretion. Instead, jurisdictions should categorically protect defendants charged with capital offenses from the potentially prejudicial nature of joinder, as Louisiana has for nearly a century. Born from the state’s unique judicial history, Louisiana’s joinder regime restricts joinder to those offenses which are triable by the same “mode of trial,” a phrase that has undergone statutory interpretation, constitutional examination, and judicial scrutiny. Louisiana offers its criminal defendants a structural, procedural protection by prohibiting the joinder of capital offenses with noncapital offenses. Although other scholars have published articles and studies criticizing joinder regimes, pointing out the ways in which offenses’ joinder may prejudice defendants, or presenting data to show prejudice’s existence in practice, none have yet suggested—as this Article does—that jurisdictions revise their joinder regimes to prohibit the joinder of capital and noncapital offenses. If jurisdictions revised their joinder schemes in this way, they could maintain liberal joinder regimes for the most common criminal cases, where joinder is most efficient, without continuing to hinder those defendants who face the most serious consequences and the highest stakes during their trials. This Article first discusses the history and current status of joinder in most jurisdictions, followed by the history and current status of joinder in Louisiana. It then explains capital-offense joinder in Louisiana and how it differs from other jurisdictions in the United States. The Article further analyzes the arguments for liberal joinder and critiques them by presenting research in the field, practical considerations, and historical arguments. The Article concludes by urging other jurisdictions, particularly those with capital sentencing capabilities or capital offense punishments, to amend their joinder provisions to prevent the joinder of capital offenses with noncapital offenses. If jurisdictions revised their joinder schemes in this way, they could maintain liberal joinder regimes for the most common criminal cases, where joinder is most efficient, without continuing to hinder those defendants who face the most serious consequences and the highest stakes during their trials.

“Defund the (School) Police”? Bringing Data to Key School-to-Prison Pipeline Claims

By: Michael Heise & Jason P. Nance | August 18, 2021

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline and the growing number of calls for schools to defund SRO/police programs. One claim is that public schools’ increasingly “legalized” approach toward student discipline increases the likelihood that students will be thrust into the criminal justice system. A second distributional claim is that these adverse consequences disproportionately involve students of color, boys, students from low-income households, and other vulnerable student sub-groups. Both claims implicate important legal and policy dimensions, as students’ adverse interactions with law enforcement agencies typically impose negative consequences on students and their futures. We study both claims using the nation’s leading data set on public school crime and safety, supplemented by data on state-level mandatory reporting requirements and district-level per pupil spending, and explore three distinct analytic approaches in an effort to assess the independent influence of a school’s SRO/police presence on that school’s student discipline reporting behavior. Results from our analyses provide mixed support for the two claims. We find that a school’s SRO/police presence corresponds with an increased likelihood that the school will report student incidents to law enforcement agencies. However, we do not find support in the school-level data for the distributional claim.