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Volume 110 - Issue 2

Article

Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida

Paul G. Cassell & Margaret Garvin | March 19, 2020

A majority of states have adopted state constitutional amendments protecting crime victims’ rights. Most of those amendments were adopted long ago and many fail to comprehensively address crime victims’ interests. In response to these shortcomings, the nation is seeing a new wave of state constitutional amendments protecting crime victims’ rights. Among these states is Florida, where in November 2018 Florida voters approved significantly expanded protections for crime victims in Florida’s Constitution—“Marsy’s Law for Florida.”

This Article explains in detail how Marsy’s Law for Florida provides important new protections for crime victims in the Florida criminal justice process. The Article begins by providing a brief overview of the crime victims’ rights movement in this country. It then turns to the specific crime victims’ rights added by the new Florida Amendment, describing why each of these rights is an important addition to Florida’s Constitution (and other similar constitutional amendments in other states). The Article concludes by reviewing broader lessons to be learned from Florida’s new enactment, contending that Florida’s recent experience may be useful for other states considering expanding their state constitutional protections and may ultimately set the stage for a federal constitutional debate about protecting crime victims’ rights.

Juvenile Life Without Parole in North Carolina

Ben Finholt, Brandon L. Garrett, Karima Modjadidi, & Kristen M. Renberg | March 19, 2020

Life without parole (LWOP) is “an especially harsh punishment for a juvenile,” as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole (JLWOP) sentences. Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, such sentencing has declined. This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications.

We examine the cases of ninety-four North Carolina juveniles, aged thirteen to seventeen at the time of their offenses, who were sentenced to JLWOP. Of those, forty-nine are currently serving LWOP sentences. In North Carolina, JLWOP sentencing has markedly declined. Since 2011, there have been only five of such sentences. Of the group of ninety-four juvenile offenders, forty-four have so far been resentenced to non-LWOP sentences—largely pursuant to the post-Miller v. Alabama legislation passed in North Carolina. These JLWOP sentences are primarily concentrated in a small group of counties. A total of 61% (fifty-seven of the ninety-four) JLWOP sentences in North Carolina were entered in one of the eleven counties that have imposed more than three JLWOP sentences. We find a path dependency to these sentences: once a county has imposed a JLWOP sentence, it has a higher probability of imposing a JLWOP sentence again in the future. In contrast, homicide rates are not predictive of JLWOP sentences. We question what goals JLWOP serves, given what an inconsistently used, uncommon, geographically limited, and costly sentence it has been in practice. In conclusion, we describe alternatives to JLWOP, including the model adopted in states such as California and Wyoming, in which there is periodic review of lengthy sentences imposed on juvenile offenders.

Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

Lawrence Rosenthal | March 19, 2020

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs.

This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace prophylactic rules excluding evidence thought to present unduly high risks of convicting the innocent.

The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring erroneous acquittals to wrongful convictions. It is difficult, however, to construct a Blackstonian case for the exclusion of evidence thought to be unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this Article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject the consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do—as prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.

The Prosecutor as a Final Safeguard Against False Convictions: How Prosecutors Assist with Exoneration

Elizabeth Webster | March 19, 2020

Prosecutors have helped secure an unprecedented number of recent exonerations.  This development, combined with the rapid emergence of district attorney-initiated conviction integrity units (CIUs) raises several questions.  How do prosecutors’ offices review postconviction innocence claims?  How do they make decisions about the merits of those claims? How do CIU processes differ from non-CIU processes?  This study examines the circumstances surrounding prosecutor-assisted exoneration cases through semi-structured interviews with 20 prosecutors and 19 defense attorneys.  It draws from a sample of both CIU and non-CIU prosecutors, thereby enabling comparisons.  Respondents were asked about their experiences and decision-making structures in specific, post-2005 exoneration cases as well as their impressions of postconviction practices more broadly.  Their responses revealed the salience of office hierarchies and appellate principles for prosecutors’ postconviction discretion.  Unlike earlier stages—such as charging and plea bargaining—few decisions appear to be delegated to the line prosecutor in the postconviction stage.  Therefore, I incorporate organizational accident theory to understand key decisions, such as which prosecutor should be tasked with reviewing innocence claims, how to screen claims, and how to decide the outcome of an innocence claim.  I find that prosecutors work within a system that emphasizes procedural errors over factual ones and that allows for a narrow and belated discovery of false convictions. Thus, prosecutors’ postconviction efforts do not appear likely to create a new pathway to exoneration for pro se defendants, or to identify false convictions that have not already been discovered by trusted defense attorneys, innocence organizations, and/or journalists.  Although most prosecutors described processes that could reliably facilitate unbiased case review and reinvestigation, these processes were reserved for only the most extraordinary of innocence claims.  The significance of this research for policy (in the crafting of legislation and court rules) and practice (in the processing of innocence claims through prosecutors’ offices) is discussed.

Note

A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery

Riley E. Clafton | March 19, 2020

How we think about the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. This Comment demonstrates why materiality, and the theory of juridical proof informing that standard of materiality, must be redefined for Brady v. Maryland doctrine and criminal process. First, the Comment delineates the theory of explanationism—the revolutionary paradigm shift unfolding in the theory of legal proof. Explanationism conceptualizes juridical proof as a process in which the factfinder weighs the competing explanations offered by the parties against the evidence and the applicable burden of proof. Applying explanationism to criminal process demonstrates that explanationism not only is the more accurate account of juridical proof, but also better frames the criminal discovery process and ensures due process of law. The next section applies explanationism to Brady doctrine to show that the Supreme Court has tip-toed towards a more explanatory view of Brady v. Maryland but also faltered and lapsed back into a probabilistic inquiry at critical junctures. As a result, the efficacy of Brady is diminished where it is undermined by probabilistic theory or language. As a result, the doctrine should embrace explanationism more wholly. Under explanationism, materiality is determined by assessing whether the suppressed evidence could have been used by the defendant to influence the factfinder when presenting her case. To illustrate this argument and its importance in real-world outcomes, this Comment takes state and federal courts of Texas as a case study. In Texas, probabilistic definitions of materiality have thwarted both Brady doctrine and legislative criminal discovery reform. The case study demonstrates the material consequences for not rethinking materiality. Changing our understanding of materiality is critical to protecting the right to due process of law in our courthouses and state legislatures.

Family Separation Under the Trump Administration: Applying an International Criminal Law Framework

Reilly Frye | March 19, 2020

In April 2018, former Attorney General Jeff Sessions announced the “Zero Tolerance Policy.” The policy significantly increased criminal prosecution of immigrants entering the United States without inspection. Increased adult prosecution directly led to family separation. Parents were sent to federal jail and their children went to the Office of Refugee Resettlement. Neither institution communicated with the other, and the United States government lost track of parents and children. The government separated nearly 3,000 children from their parents, going as far as deporting over 400 parents to their countries of origin while their children remained in the United States. Many of these separated families were seeking asylum.

Domestic litigation is ongoing regarding the family separation policy. Yet international litigation could also be an avenue of justice for these parents and their children. Recently, in a September 6, 2018 decision regarding the deportation of the Rohingya people from Myanmar to Bangladesh, the International Criminal Court (ICC) found that the crime against humanity of deportation has a start point and an end point. If just one of these points is within a State Party of the Rome Statute, then the ICC can exercise jurisdiction over the entire crime—even if the crime involves a country that is not a signatory of the Rome Statute like the United States.

In the case of the U.S. government’s family separation policy, the starting point is the United States, and the end point is the Central American countries that are State Parties to the ICC, like Mexico, Honduras, El Salvador, and Guatemala. Because these Central American countries are members of the ICC, the crime against humanity of deportation can theoretically invoke ICC jurisdiction over U.S. officials. In short, the ICC could prosecute U.S. government officials for the crime against humanity of deportation that occurred during the Trump Administration’s family separation policy, despite the U.S. not being a signatory of the Rome Statute.

Since the U.S. is not a member of the ICC, there would be no obligation for the government to surrender any official indicted by the Court. Indeed, considering former National Security Adviser John Bolton’s recent attack against the ICC regarding the Situation in Afghanistan, it is likely that the U.S. government would do everything possible to delegitimize or ignore any ICC decision concerning the Trump Administration. U.S. government retaliation could come in the form of sanctions, an increase in the number of bilateral treaties, or lack of cooperation. More likely than the government exercising complementarity—arguably the simplest way to avoid an ICC prosecution—the Trump Administration could also use its status as a permanent member of the United Nations Security Council to defer the prosecutor’s investigation.

Nonetheless, despite the barriers to enforcement, should the ICC prosecute top U.S. officials for the Zero Tolerance Policy, international criminal law still has a place in denouncing the family separation that occurred in summer 2018. The international community’s perception of a country’s stance on human rights has wide-reaching impacts, even for a global power such as the U.S. The ICC’s reach has grown exponentially due to its recent jurisdictional decision regarding the Rohingya. Any decision regarding ICC prosecution of U.S. officials for the Trump Administration’s family separation policy would have wide-reaching impacts for the world.