Criminal Law

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v88.3
Qualified Immunity's Boldest Lie
Joanna C. Schwartz
Professor of Law, UCLA School of Law.

For helpful comments on earlier drafts, thanks to Karen Blum, Roger Clark, Barry Friedman, Christopher Kemmitt, James Pfander, Richard Re, Alexander Reinert, Lou Reiter, Jack Ryan, Seth Stoughton, and Stephen Yeazell. For help constructing the dataset of Ninth Circuit cases, many thanks to John Wrench and Anya Bidwell. For excellent research assistance, thanks to Bryanna Taylor and Hannah Pollack. Thanks also to the editors at The University of Chicago Law Review for excellent editorial assistance.

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87.7
California’s Proposition 47 and Effectuating State Laws in Federal Sentencing
Brenna Ledvora
BS 2015, Northwestern University; JD Candidate 2021, The University of Chicago Law School.

Vickie Sanders was convicted in a California state court of felony drug possession, sixteen years before California voters would pass Proposition 47. Proposition 47, which was passed in 2014, reduces most possessory drug offenses from felonies to misdemeanors, and allows California courts to retroactively redesignate individuals’ felonies as misdemeanors.

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Her Alone: Feminist Perspectives on the Future of Spousal Privileges
Alexandra Aparicio
A.B. 2018, Princeton University; J.D. Candidate, 2021, The University of Chicago Law School.

The author thanks Professor Emily Buss and the staff of The University of Chicago Law Review for their helpful feedback on this essay.

On August 30, 2019, the New Mexico Supreme Court prospectively abolished the state’s spousal communications privilege.

Feminism Spousal Privilege
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87.3
Some Doubts About “Democratizing” Criminal Justice
John Rappaport
Assistant Professor of Law and Ludwig and Hilde Wolf Research Scholar, University of Chicago Law School.

I am indebted to Monica Bell, Merav Bennett, Stephanos Bibas, Andrew Crespo, Justin Driver, Roger Fairfax, Trevor Gardner, Bernard Harcourt, Emma Kaufman, Brian Leiter, Richard McAdams, Tracey Meares, Martha Nussbaum, Dan Richman, Jocelyn Simonson, Roseanna Sommers, and Fred Smith for terrific comments on drafts. Thanks as well to Will Baude, Genevieve Lakier, Lauren Ouziel, and participants at the Criminal Justice Roundtable, the Junior Criminal Justice Roundtable, the University of Chicago Works-in-Progress Workshop, and the University of Virginia Faculty Workshop for generative conversations. For research assistance, thanks to Merav Bennett, Dylan Demello, Morgan Gehrls, Alli Hugi, Kevin Kennedy, and especially Alex Song. The Darelyn A. and Richard C. Reed Memorial Fund furnished financial support.

For the uninitiated, a brief rehearsal of the facts of the matter: The United States presently incarcerates over two million individuals, with another four million under other forms of correctional supervision.

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86.8
Exculpatory Evidence Pre-plea without Extending Brady
Brian Sanders
BA 2017, Pepperdine University; JD Candidate 2020, The University of Chicago Law School

I thank Professor Douglas Baird for his critiques, especially in regard to big boy clauses. I thank Brendan Anderson, Tiberius Davis, and Zachary Reynolds for listening to me talk incessantly about exculpatory evidence and for providing indispensable feedback. I thank Charles F. Capps for all his insights and especially for his critique of my formal logic.

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Criminal Justice Reform and the Courts
Rachel E. Barkow
Rachel E. Barkow is the Segal Family Professor of Regulatory Law and Policy at NYU Law School.

This essay is a revised and excerpted version of Chapter 10 of Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (Harvard 2019).

Prosecutors seem to be the primary target for criminal justice reformers today, and with good reason: they are key gatekeepers to whether criminal charges get brought or not, and the particular charges they bring often dictate a defendant’s sentence.

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86.2
Assessing the Empirical Upside of Personalized Criminal Procedure
Matthew B. Kugler
Assistant Professor, Northwestern University Pritzker School of Law.

The authors thank Kiel Brennan-Marquez, Lee Fennell, Woodrow Hartzog, William Hubbard, Aziz Huq, Orin Kerr, Richard McAdams, Michael Pollack, John Rappaport, RichardRe, Victoria Schwartz, Christopher Slobogin, Rebecca Stone, and Alexander Stremitzer, along with workshop participants at UCLA Law School and The University of Chicago Law School, and attendees at the Privacy Law Scholars Conference, and The University of Chicago Law Review Symposium on Personalized Law for helpful conversations and comments on earlier drafts. The authors also thank Liz Sharkey for helpful research assistance. Finally, the authors thank the Carl S. Lloyd Faculty Fund for research support.

Lior Jacob Strahilevitz
Sidley Austin Professor of Law, The University of Chicago Law School.
Imagine a person is being questioned by the police. If this is a mere friendly chat, then the police need not advise that person of her rights. If, however, this is a “custodial interrogation,” then the person—the suspect—must generally be given a Miranda warning for any incriminating statements she makes to be admissible in court.
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86.2
Neuroscience and the Personalization of Criminal Law
Deborah W. Denno
Arthur A. McGivney Professor of Law, Founding Director, Neuroscience and Law Center, Fordham University School of Law. All statistics and case distributions discussed in this Essay and presented in the Appendix in Table 1 and Figures 1–5 are organized and on file with the author and with The University of Chicago Law Review.

I am most grateful to the following persons for their contributions to this Essay: Ruben Coen-Cagli, Nestor Davidson, Kathleen Ellis, Janet Freilich, Marianna Gebhardt, David Greenberg, Filippo Maria Lancieri, Jacob Nadler, Mark Patterson, Richard Squire, Ryan Surujnath, and Erica Valencia-Graham. I also thank Alissa Black-Dorward and the Fordham University School of Law library staff for superb research assistance as well as Timothy W. DeJohn for providing information about the Jones case. I received insightful comments on earlier versions of this Essay from the participants in presentations given at Stanford Law School (the BioLawLapalooza 2.0), the Fordham University School of Law, and at The University of Chicago Law Review Symposium on Personalized Law (organized by Omri Ben-Shahar and Ariel Porat). I am indebted to five sources for research funding, without which this project could not have existed: Fordham University School of Law, the Fordham Neuroscience and Law Center, the Gerald Adelman Fellowship, Roger Sacks, and the Barnet and Sharon Phillips Family Fund. No individual or organization acknowledged in this Essay necessarily supports the Essay’s interpretations or conclusions. Responsibility for any mistakes or misjudgments rests solely with the author.

Every criminal case is part of a larger personal story—some headline-grabbing, some entirely mundane; yet each narrative is important to how the criminal justice system assesses an individual’s level of culpability.

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85.8
To Move or Not to Move? That Is the Metaphysical Question
David J. Sandefer
BA 2016, Auburn University; JD Candidate 2019, The University of Chicago Law School

Philosophers have long pondered the metaphysical meaning of an object’s “location” or the “where of a thing.”

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