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Spring 2023
Volume 20.1
Fiona Doherty
The Revocation of Community Supervision: A Reform Project

One of my very first cases as a public defender involved a violation of federal supervised release, and I have been drawn to such cases ever since. I agreed to cover the case for one of my colleagues during my first few days in the office. My colleague handed me the file, assuring me that there was no way for me to mess anything up. Ms. Collins had been convicted of a nonviolent crime and was on supervised release after serving a short prison term. The probation department had filed a petition to revoke her supervised release because she did not go to her mental health treatment appointments. My colleague promised me that the judge assigned to Ms. Collins’ case would not do anything to hurt her at the hearing. This particular judge did not send people to prison for missing appointments. The next day, I was a bundle of nerves as I waited for Ms. Collins in the imposing federal courthouse...

Wayne A. Logan
Toward a New Understanding of “Affirmative Disability or Restraint” in the Preventive State

The Ex Post Facto Clause is a unique and critically important constitutional provision. It is unique because it contains one of the few civil liberty protections in the body of the U.S. Constitution. It is critically important because of the role the Framers intended it to play in curbing burdensome retroactive laws enacted by legislatures. Indeed, testament to the Framers’ considerable concern, the Constitution includes not one but two prohibitions of ex post facto laws, limiting the retroactive lawmaking wherewithal of Congress (Article I, section 9) and state legislatures (Article I, section 10). The problematic nature of ex post facto laws and the need to prohibit them was repeatedly recognized at the nation’s origin...

Keesha M. Middlemass
Plea Deals and Prisoner Reentry—The Connection that is Missing from Reentry Conversations

The United States is an incarcerating nation, and the criminal legal system is the dominant government enterprise used to avoid addressing serious social ills and ailments; in fact, serving time in prison has become the norm in disadvantaged communities. Despite some institutional variations across the criminal legal system, the passage and implementation of punitive policies has extended the police dragnet, hardened criminal sentences, increased the size of the prison population, and intensified the over-representation and over-incarceration of Black men and women. These efforts contribute to the carceral continuum, a phrase coined by Michel Foucault to describe how criminal policies have extended punitive statutes outside of its traditional boundaries in an effort to keep hundreds of thousands of people under some form of control for extended periods of time. The carceral continuum includes multiple forms of surveillance...

Nicole Smith Futrell
Practicing With Conviction: Race, Reentry, and the Legal Profession

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic inequities within the legal profession itself...

Michael L. Zuckerman
Irrational Collateral Sanctions

In the modern era, a criminal sentence is rarely truly over just because someone has served their time. Instead, both legal and social barriers continue to haunt most people who have been convicted of crimes for years. These barriers often persist long past the point of making good sense. While social barriers like stigma are not always easy for lawyers and lawmakers to address, legal barriers like so-called “collateral sanctions” (also known as “collateral consequences”) are their bread-and-butter. In Part I of this Essay, I tell an anonymized client story that illustrates many of the existing efforts to blunt the effects of collateral sanctions in Ohio. In Part II, I discuss in more depth both the problem of collateral sanctions and both the challenges and opportunities posed by existing remedial efforts. In Part III, I discuss the opportunity for rational-basis challenges to irrational collateral sanctions when other remedial opportunities are unavailing...

Peter Westen
Intentionally Harming Others Without Any Benefit to Oneself

Is it wrong in itself to purposely harm others without any benefit to oneself? I examine this question through the lens of an enigmatic provision of the Model Penal Code, which proposes that it be an offense to purposefully obtain property of another “by threatening to inflict any harm that would not benefit the actor.” I argue that the act of inflicting harm without benefit to oneself is not inherently wrong because (i) in contrast to “prima facie torts,” which consist solely of unjustified harms, harms that do not benefit actors are not necessarily unjustified, given that they may justifiably benefit third parties, and (ii) contrary to the “abuse of rights” doctrine, any malice evidenced by inflicting harm without benefit to oneself does not transform justified harms into unjustified harms. Then, after considering and rejecting several reasons for thinking otherwise, I argue that a threat of harm without benefit to oneself is also not itself a morally wrongful inducement to surrender property...

Ira P. Robbins
Citizen’s Arrest and Race

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and widespread law-enforcement entities. I surveyed developments across the United States and highlighted numerous problems with the doctrine that led to confusion and abuse. I concluded by recommending abolition of the doctrine in most instances and proposed a model statute to address appropriate applications of citizen’s arrest...

Shon Hopwood
OSJCL Symposium 2022: Transcript of Keynote Speech

Thank you for having me, and thanks to everybody who participated. I’m going to start by telling a story, and then at the end of the story I’m going to talk about its policy implications, and then I’m going to finish by telling you where I currently am and what I’m going to be doing this weekend, because it ties in neatly with the story I’m about to tell you. The story I’m about to tell you is about a man named Adam Clausen, who, at the age of 23, committed nine robberies of massage parlors in and around Philadelphia. He did so with guns, and, while no one was physically hurt, these were violent crimes and serious offenses. Adam turned down a plea agreement with the government for ten years and decided to exercise his right to a jury trial. He then went to trial, and lost on all counts. Because of the harshness of our federal sentencing practices, Adam faced a steep mandatory minimum sentence. In fact, his mandatory minimum was 205 years in prison, and the judge ultimately sentenced him to 213 years. To put this in perspective, generally people in federal prison must serve 85% of their sentence. And so, at one point, Adam’s release date was December 1, 2185. I think most people in Adam’s situation—24 years old, facing life in prison without parole, no chance of release—would have very little hope and would give up. And yet...

Daniel S. Harawa
NYSRPA v. Bruen: Weaponizing Race

I steeled myself as I prepared to read New York State Rifle & Pistol Association v. Bruen. Not because I was unsure of how the Supreme Court would rule—it seemed clear that the Court would hold that New York’s concealed handgun permitting regime violated the Second Amendment. Rather, I worried because if past is prologue, the Court was going to weaponize race in reaching its decision. Bruen did not disappoint. In its modern Second Amendment jurisprudence, the Court—with its most conservative members writing—has consistently appropriated a racial justice angle in its efforts to reshape the scope of Second Amendment rights. Bruen continued this trend. While the Court has weaponized race—particularly America’s history of anti-Black racism—to expand the reach of the Second Amendment, it has not sought to ensure Black people have equal access to the right to bear arms now that the right is broader than ever before...

A. Shea Daley Burdette & Jacob Carruthers
Judicial Review of Prosecutorial Blanket Declination Policies

On January 12, 2021, Washtenaw County’s (MI) Prosecuting Attorney announced a set of directives foreclosing prosecution for the use and possession of marijuana and certain psychedelic drugs. The directives prohibit assistant prosecuting attorneys from charging individuals for the “unauthorized use or possession of marijuana or cannabis, regardless of the amount at issue.” Michigan’s marijuana and psychedelic statutes had not changed from the previous day. Yet, for Washtenaw County residents, the “law” seemingly changed overnight as a slate of behaviors shifted outside the realm of criminal regulation. All this occurred without a vote by a legislative body or by initiative from Washtenaw County citizens themselves. Still, despite the changes made by the Prosecuting Attorney through this directive, their policies explicitly disclaimed any creation of “substantive or enforceable rights.” The Prosecuting Attorney’s policy represents just one example of blanket nonenforcement measures by prosecutors across the United States...