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Volume 111 - Issue 3


Capital Felony Merger

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

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

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.

Minding the Gap in Domestic Violence Legislation: Should States Adopt Course of Conduct Laws?

Teresa Manring | August 18, 2021

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several years, England and Wales, Ireland, and Scotland have passed laws that have attempted to bridge this gap in their own societies. The enactment of these laws abroad—and the fact that legislatures are considering similar laws in other jurisdictions, including the United States—provides a timely opportunity to analyze whether state legislatures should adopt similar laws here. This Comment argues that states should adopt domestic violence laws similar to the ones passed abroad. First, it explains why this gap between the criminal law and other understandings of domestic violence emerged, what it looks like in practice, and what its consequences are for victims throughout their experience with the criminal justice system. Second, it draws attention to the ways in which both the legislature and the criminal justice system are growing increasingly comfortable with defining and prosecuting crimes as courses of conduct. Based on the conduct covered and the harm addressed under these already existing laws, introducing similar laws in the domestic violence context would be a natural next step. Third, it evaluates course-of-conduct laws recently passed in Scotland, Ireland, and England and Wales that have attempted to close this gap. Finally, it recommends that states pass course-of-conduct domestic violence statutes, using Scotland’s law as a model.

Rethinking Reverse Location Search Warrants

Mohit Rathi | August 18, 2021

The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of individuals that might not have otherwise satisfied traditional probable cause as required by the Fourth Amendment. This Comment first seeks to provide a high-level explanation of the reverse location search warrant, including the process by which this type of warrant is served to judges. It then discusses the role of Google, the primary provider of location information, in cooperating with law enforcement. Next, it outlines the technical and constitutional concerns created through the use of reverse location search warrants, specifically addressing concerns around the accuracy of Google’s location information data, judges’ ability to meaningfully review these warrants, and potential Fourth Amendment challenges that reverse location search warrants might face. It next discusses the benefits that reverse location search warrants might provide to police departments across the country, including connecting otherwise seemingly disparate crimes and providing defense attorneys with location information they can use to protect their clients. Finally, this Comment proposes that the judiciary create an emergency exception to the probable cause framework in order to analyze reverse location search warrants. This exception is necessary because these search warrants raise unique technological and constitutional issues that are difficult to analyze under the probable cause framework. Alternatively, this Comment provides three common-sense legislative solutions which, if adopted, would help limit the privacy impact that reverse location search warrants could have on citizens across the country.