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Volume 110 - Issue 3


Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform

Deborah M. Ahrens | May 14, 2020

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active government promotion of a new cannabis economy present a stark and deeply racialized contrast. This Article argues that, in states where marijuana has been legalized, our policy-making apparatus should acknowledge and move to redress both the failings of our prior system of drug regulation and the social and economic disparities in current law by embracing a concept of “retroactive legality.” Retroactive legality is a framework in which we seek to restore those convicted of marijuana crimes to the rights and civic status they would have had if their conduct had never been illegal. Such an approach would build upon the piecemeal expungement and pardon policies adopted or proposed in some of these jurisdictions but would reach substantially further, by incorporating those convicted of more serious offenses, putting the onus on the state to identify and clear such convictions, and declining to impose additional requirements and costs on those seeking to have their convictions retroactively legalized.

Prosecutorial Declination Statements

Jessica A. Roth | May 14, 2020

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, and history-keeping—and their drawbacks. Next, it describes the current landscape of prosecutorial policies and practices on declination statements and shows how prosecutors would benefit from a more express framework of analysis. Finally, it offers such a framework to assist prosecutors in deciding when and how to issue declination statements. That framework suggests that prosecutors should only issue public declination statements when doing so significantly furthers one or more of the interests identified herein, where the risks posed by such statements are minimized, and where their value cannot be realized through other available means, including other types of statements.

The Perceptions of Juvenile Judges Regarding Adolescent Development in Evaluating Juvenile Competency

Colleen M. Berryessa & Jillian Reeves | May 14, 2020

This analysis provides the first known in-depth qualitative inquiry into if and how juvenile court judges take the psycho-social immaturity and development of adolescents into consideration when making attributions of adjudicative competency of offenders in juvenile court. Semi-structured interviews were conducted with twenty-seven U.S. juvenile court judges, followed by grounded theory analysis. Competency evaluations from psychologists and the juvenile’s age, history, awareness, and mental capacity influence judicial determinations of competency. Although data show that understandings of adolescent development do play a large role in shaping judges’ understandings of juvenile behavior—particularly related to emotional control, irrational behavior, lack of maturity, and social susceptibility—most judges only connected these characteristics to juvenile offending. Although cognizant that juveniles exhibit attributes that diminish competency-related abilities as part of their adolescent development, the majority of judges still stated that adolescent development is not important to them in assessing juvenile competency, potentially demonstrating a cognitive disconnect on these issues. These results indicate approaches to how judges might think about juvenile competency decisions (“building blocks” vs. “holistic” models) and the need for more direct education and training of judges on the role of adolescent development in competency.


“You May Be Down and Out, But You Ain’t Beaten”: Collective Bargaining for Incarcerated Workers

Keith Armstrong | May 14, 2020

The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs within prisons, such as cooking, cleaning, and manufacturing license plates. After Jones, prisoners have not been able to assert a constitutional right to associate, but they have continued to struggle for labor protections. These efforts have mostly taken the form of unauthorized prison strikes. The largest recent strike involved inmates in over seventeen states. Issues involving prison labor have moved to the forefront of conversations on criminal justice reform. Recently, scholars have examined the ways in which unions of incarcerated workers might make use of federal labor law, including the National Labor Relations Act (NLRA) to gain recognition as collective bargaining units. However, even if these efforts succeed, their impacts would be limited to incarcerated workers involved in the PIE program or to those working in private industries in private prisons. The vast majority of incarcerated workers who do not work in private industries would be excluded. As a complementary approach, and in order to expand labor protections to those incarcerated workers who would not be covered by the NLRA, incarcerated workers may also wish to look to state labor law for protections. This Comment surveys state public employee collective bargaining statutes. Some states categorically exclude prisoners from their definition of “public employee” or do not permit any association of public employees to engage in collective bargaining. However, other states have broad definitions that could conceivably include prisoners. Advocates of incarcerated worker union organizing may wish to focus their efforts on these states. If incarcerated worker unions are able to organize under state or federal labor law, then they may eventually be able to demonstrate that such associations are beneficial rather than detrimental to maintaining order in prisons, which could help chip away at the overbroad holding in Jones.

STEPping into the “Wrong” Neighborhood: A Critique of the People v. Albillar’s Expansion of California Penal Code Section 186.22(a) and a Call to Reexamine the Treatment of Gang Affiliation

Samuel DiPietro | May 14, 2020

Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious criminal conduct by gang members instead of solely gang-related felonious conduct. The court’s holding in Albillar essentially allows a defendant who is affiliated with a criminal street gang to receive an additional sentence for the commission of any felonious crime regardless of whether the crime had any relationship to the defendant’s gang membership. This Comment argues that such an application of Section 186.22(a) runs afoul of the Supreme Court’s holding in Robinson v. California, where the Court held that punishing an addict for his status of being addicted to drugs amounted to cruel and unusual punishment. While Section 186.22(a) does require a felonious act unlike the statute in Robinson, this Comment examines the Supreme Court’s holdings regarding the constitutionality of hate crime enhancements and concludes that the California Supreme Court’s holding in Albillar exceeds constitutional bounds. This Comment concludes by examining the policy rationale behind the Robinson holding and applying that rationale to gang membership, suggesting that treatment, as opposed to imprisonment, might be the proper solution to California’s criminal street gang problem.

Can You See and Hear Us, Ms. Smith?: Protecting Defendants’ Right to Effective Assistance of Counsel When Using Audio and Video Conferencing in Judicial Proceedings

Ivaylo Valchev | May 14, 2020

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not modern displays but a document ratified in 1788. This Comment discusses how one emerging technology—audio and video conferencing—poses a risk to the right to effective assistance of counsel. The Comment advances three main arguments. First, the use of audio and video conferencing makes it more difficult for a criminal defendant to confront state witnesses. Second, the extent to which audio and video conferencing negatively impacts the right to effective assistance of counsel is dependent on the type of judicial proceeding. Lastly, the current constitutional tests for finding ineffective assistance of counsel are inadequate in cases where audio and video conferencing may be used.