Volume 18.2

Spring 2021


COVID-19 Relief and the Ordinary Inmate

This is the story of two men in Alabama. It is the story of a child in Texas; a woman in Washington. Or more precisely it is my retelling of their story, mixed with the stories of others like them to form a single narrative. This is not my story, but it is one I can tell—not because I know it best (I don’t) or because I am most entitled to give it voice (I’m not), but because I know it...


The Court is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007–2009. Redistributive policies—those which use taxpayer funds to support individuals who themselves pay little or no tax—are particularly susceptible to cuts during times of fiscal stress...


Incarcerated Activism During COVID-19

Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic...


Sex Offender Registration in a Pandemic

It is often said that modern laws targeting convicted sex offenders, including registration and community notification (SORN), are the result of a “moral panic,” generated by widespread media accounts of child sexual abuse cases in the 1980s.1 Although perhaps apt when SORN laws originated, the panic characterization no longer rings true. Thirty years later, the potent social and political forces driving SORN continue unabated...


The End of Jury Trials: Covid-19 and the Courts: The Implications and Challenges of Holding Hearings Virtually and in Person During a Pandemic from a Judge’s Perspective

Covid-19 has vanquished many institutions. Those who have not completely succumbed to the virus’ onslaught have been slow to recover their usual form. Courts have been no different. Initially, we closed our court in mid-March 2020. Virtually every court in Texas and the United States by late March had done the same. At that point, those embracing technology attempted to adapt Zoom and Zoom-like virtual meeting places to the judiciary...


The Biopolitics of Maskless Police

Despite the recent movement against police violence, police officers have been endangering their communities by engaging in a new form of violence—policing while refusing to wear facial coverings to prevent the spread of COVID-19. Many states advise people to wear masks and to socially distance when in public spaces. However, police officers have frequently failed to comply with these guidelines as they interact with the public to enforce these COVID-19 laws...


Expanding Compassion Beyond the COVID-19 Pandemic

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences...


How the Economic Loss Guideline Lost its Way, and How to Save It

This Article revisits a stubborn problem that has been explored by commentators repeatedly over the past thirty years, but which remains unresolved to this day. The economic crimes Guideline, Section 2B1.1 of the United States Sentencing Manual, routinely recommends arbitrary, disproportionate, and often draconian sentences to first-time offenders of economic crimes...


The Substance of Montgomery Retroactivity: The Definition of States’ Supremacy Clause Obligation to Enforce Newly Recognized Federal Rights in Their Post-Conviction Proceedings and Why it Matters

In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court made a decision of far-reaching importance to the criminal justice system: The Supremacy Clause requires states adjudicating post-conviction attacks to give full retroactive effect to “substantive” new rules of federal constitutional law.
The significance of this holding has so far been under-appreciated because of the assumption that “substantive” has the same narrow meaning in the context of...


When We Breathe: Re-Envisioning Safety and Justice in a Post-Floyd Era

The viral video of police officer Derek Chauvin killing George Floyd stirred the conscience of the world. Chauvin was calm, collected, and in control while he pressed his knee on the neck of a dying man who was crying out for his mother. Meanwhile, the other officers casually waved away onlookers. That heart-wrenching video—so sad in its apparent inevitability, so evil in its banality—broke something loose. Amid the many other pressing issues of inequity...