Issues

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions. This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence. Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected. These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers

In this essay, we update and expand David Baldus’s famous study of Georgia homicides in the 1970s to uncover the impact of the race and sex of homicide victims on whether a defendant was sentenced to death and ultimately executed. We show that the odds of a death sentence were sixteen times greater if the victim was a White woman than if the victim was a Black man, even when other factors that might explain the disparity were taken into account. Furthermore, we identified a clear hierarchy among victims with regard to whether a death sentence was ultimately carried out. Among the defendants who were sent to death row for killing a White woman, 30% were executed. But the share drops to 19% if the victim was a White man, 10% if the victim was a Black woman, and 0% if the victim was a Black man. We then use contemporary, nationwide Supplemental Homicide Report (SHR) data to show that the effect we identified in Georgia in the 1970s generalizes to the nation as a whole and to the present day. We argue that these disparities, which cannot be explained by factors extrinsic to the victim’s race and sex, are further evidence that the ultimate question of who lives and dies in our criminal justice system remains unconstitutionally tainted by outdated notions of chivalry and White supremacy.

Does legal representation affect critical judicial decisions? This Article highlights a paradox at the heart of the court sentencing processes used for death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability (whether drug offenders have access to legal assistance) and the quality (the varieties and the conditions of legal services provided by private versus court-appointed attorneys) of legal representation. I argue that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and proceduralbased legitimacy. The defense lawyer has little power to determine capital drug sentencing decisions; at the same time, criminal defense lawyers are unable to fully realize themselves in their professional activities. They are used as instruments to advance bureaucratic and political interests and are therefore exposed to impoverished and instrumental relationships with judicial institutions and their own activities. This paradox—the insignificance of differences—takes place in China’s non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This Article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative measures based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act (PLCAA) into law, granting the firearms industry near-perfect legal immunity. PLCAA shifted the risk of firearm production, distribution, marketing, and injuries to the public. Two decades ago, mass shootings were anomalies. Today, they are alarmingly common. From 2021 to 2023, the United States averaged 663 yearly mass shootings, and from 2004 to 2022, active shooter events spiked 1,150%. The larger gun violence epidemic now costs taxpayers over $550 billion annually, forcing Congress to seek solutions with increasing desperation. However, new state laws and lawsuits targeting gun manufacturers are beginning to erode this armor as courts link the arms trade’s behavior to the crisis. Firearm distribution, unlike ownership, is not a Second Amendment right, and immunity’s collateral socio-economic damage is more evident than ever. The tide is turning. Corporations should be accountable for the costs of their business models, as reflected in every other American sector. This Comment introduces a novel Blueprint to modernize a deregulated market of dangerous, inelastic goods. Its approach is simple: shift some mass shooting risk to industry giants, termed “Big Gun.” Prong One proposes a partial repeal of PLCAA, exposing manufacturers to mass shooting liability. Prong Two presents an insurance framework to maximize profitable manufacturer operations within the new risk landscape. Prong Three urges Congress to–– constitutionally––create and institute a “Mass Shooting Court,” transferring mass shooting litigation claims for hybrid Article I administrative agency adjudication. As manufacturers reform their marketing and distribution practices that are currently linked to mass shootings, Mass Shooting Court judgments may decrease, resulting in lower insurance premiums. Executing the Blueprint would help reverse the course of the gun violence epidemic, preserve Second Amendment rights, and advance long-term industry interests.

The American juvenile court system does not recognize a right to a jury trial. It should. The juvenile court system was born out of the Progressive Era, a period of social and political change in the U.S. Its creators envisioned a system that cared for children and considered which individual treatment would suit each child in the system. However, the actual history of the juvenile court did not follow this idealistic vision. To combat the punitive system into which juvenile court had evolved, the Supreme Court decided in subsequent years that children deserve the due process rights recognized in adult criminal court: the right to counsel, notice, confrontation and crossexamination of witnesses, the privilege against self-incrimination, and the beyond-a-reasonable-doubt standard of proof. The Court reasoned that because the juvenile court does not act all that differently from the adult criminal court, the same rights afforded to adults should be afforded to children. Despite upholding the above rights for juveniles, the Court has expressly rejected the jury trial right in the juvenile court. However, states should still elect to provide jury trials in their juvenile courts. Juries would give the juvenile court system more legitimacy, protect children from bias, and ensure that the juvenile court system has fair processes and appropriate punishments.