Volume 2015, No. 5

PDF link Table of Contents


PDF link Who’s Really Sentenced to Life Without Parole?: Searching for “Ugly Disproportionalities” in the American Criminal Justice System

By Craig S. Lerner

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences. The author conducted a detailed study of every inmate sentenced to LWOP in eight states. In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

PDF link Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights

By Colin Miller

Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This Article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called “medical Miranda,” which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission.

The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before being pressed into an unfamiliar environment in which they face possible isolation and coercion. This Article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is “imminent.” It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.


PDF link A Castle in the Sky: GPS Tracking of a Defendant’s Cell Phone Post–Riley v. California

By Bryan Sandford

For most Americans, “smart” cell phones are an omnipresent fact of life. The technological capabilities of these devices have had a transformative effect on the way we do business, communicate, and socialize with one another. One capability in particular, the ability to track and broadcast a user’s location in real time, presents a danger in the context of the Fourth Amendment: that privacy in one’s location will become a relic of the past. Though the judiciary’s role as to this issue is still being fleshed out, courts should hesitate before discarding privacy in favor of law enforcement efficiency and carefully scrutinize searches that tip the scales too far in either direction. Thus far, however, courts are struggling with how to address law enforcement efforts to access cellular location and real-time GPS information. Though the Supreme Court has provided some guidance, it appears reluctant to clarify the role that the Fourth Amendment plays in limiting access to GPS data.

In its latest decision on the Fourth Amendment and new technology, a unanimous Court discussed the enormous privacy implications attendant to unrestricted law enforcement access to the digital contents of one’s cell phone. This Comment discusses the implications that Riley v. California has on the Fourth Amendment analysis of GPS tracking by law enforcement. It argues that the Court implicitly created a per se rule requiring a warrant before accessing any content within a cell phone—which necessarily includes GPS data. The Court’s methodology in recent decisions and comparison to other contexts where the Court has created per se warrant requirements support this conclusion. In light of this, this Comment posits that lower courts should determine on a case-by-case basis whether the policy and reasoning of Riley support applying various warrant exceptions to GPS tracking. It discusses which warrant exceptions should apply, using four lower court approaches—from Wisconsin, Florida, and the Fifth and Sixth Circuits—as templates. Finally, it suggests that the Court should revisit and clarify this issue, which will aid state legislatures and lower courts in their efforts to determine the constitutional requirements.

PDF link “I Did Not Hurt Him . . . . This Is a Nightmare”: The Introduction of False, but Not Fabricated, Forensic Evidence in Police Interrogations

By Catherine E. White

Bitemark analysis, microscopic hair analysis, handwriting analysis, and other pseudosciences have been deceiving juries for years. Courts and the scientific community once regarded these types of forensic evidence as scientifically sound, but many now dispute their reliability. Almost fifty percent of cases overturned by DNA testing involve pseudoscience. This Comment focuses on a subset of those wrongful convictions: cases in which the pseudoscientific evidence deceived not only the jury but the defendant as well.

When the police use coercive methods and discuss forensic evidence with a suspect during an interrogation, the suspect sometimes confesses to committing a crime in a manner consistent with the forensic evidence. If the court convicts the suspect based on the forensic evidence and the suspect’s confession, and the scientific community later determines that the forensic evidence is unreliable, retrial is necessary. The unreliability of the pseudoscience undermines confidence in the confession. This Comment surveys the empirical studies on false confessions and argues that pseudoscientific evidence is a type of false evidence that multiple studies have demonstrated increases the risk of a false confession. In fact, pseudoscientific evidence may be even more likely than other types of false evidence to spur a false confession because “science” is such a persuasive indicator of guilt.

This Comment argues that, because a defendant convicted by pseudoscientific evidence and a pseudoscience-induced confession may be factually innocent, these convictions should be overturned, and, if the prosecution believes it still has enough reliable evidence of the defendant’s guilt, the defendant should be given a new trial. This Comment suggests a number of pragmatic methods for courts to overturn questionable convictions and provide defendants with fair retrials in which pseudoscientific and confession evidence is suppressed. Rather than viewing a defendant’s confession as independent evidence of his or her guilt, courts should recognize that the unreliability of the pseudoscience introduced during the interrogation renders the defendant’s confession unreliable as well.