Expert Analysis

• Justices' Resentencing Ruling Boosts Judicial Discretion

  

  The U.S. Supreme Court’s recent decision in Concepcion v. U.S., holding that federal judges can consider new laws and a defendant’s rehabilitation in resentencing, will enable correction of overlong crack cocaine-related sentences — but this wider judicial discretion may also entrench existing disparities, says Mark Osler at the University of St. Thomas School of Law.

• Justices Leave Many With No Court To Hear Innocence Claims

  

  While bad lawyering is an all too common cause of wrongful convictions, the U.S. Supreme Court's recent decision in Shinn v. Ramirez closes the federal courthouse doors to evidence of ineffective counsel, leaving many without a meaningful opportunity to prove their innocence, says Christina Swarns at the Innocence Project.

• Nonprofit Ruling Is An Important Step For Nonlawyer Practice

  

  A New York federal judge’s recent ruling that will allow nonprofit Upsolve to give legal advice to low-income debtors without a license is a positive development for nonlawyer practice, but presents questions about how to ensure similar programs can exist without fighting dodgy constitutional battles, says Ronald Minkoff at Frankfurt Kurnit.

• DOJ's Cautious Return To Supplemental Enviro Projects

  

  While the U.S. Department of Justice has ended the Trump-era ban on negotiating supplemental environment projects as part of civil and criminal environmental settlements, the process and delay around this change suggest that SEPs may be more limited under the Biden administration than in the past, say attorneys at Sidley.

• Justices' Ruling Makes Some Progress On Cop Accountability

  

  The U.S. Supreme Court’s recent decision in Thompson v. Clark removes a roadblock that stymied malicious prosecution lawsuits, and could have positive impacts beyond the Fourth Amendment — but suits seeking accountability for police misconduct still face numerous challenges, says Brian Frazelle at the Constitutional Accountability Center.

• We Can't Rely On Lawyers For Every Justice Need

  

  The Southern District of New York, which recently heard arguments in Upsolve and John Udo-Okon v. New York, has the opportunity to increase access to justice by allowing nonlawyers to provide legal help, shifting the focus from credentials to substantive outcomes, says Rebecca Sandefur at Arizona State University.

• Reinvigorated DOJ Is Strong Incentive For Police Reforms

  

  The U.S. Department of Justice is fully back in the business of investigating law enforcement agencies as part of the Biden administration's prioritization of racial equity, criminal justice reform and prosecution of hate crimes, so police departments have strong incentive to be proactive in their reforms, say attorneys at McGuireWoods.

• Habeas Ruling Shows Justices' Growing Hostility Toward Writ

  

  The U.S. Supreme Court’s recent decision in Brown v. Davenport, upholding the murder conviction of a man who was shackled at trial in view of the jury, makes an unjust federal review law more potent, and points to the conservative supermajority’s increasing antagonism toward writs of habeas corpus, says Christopher Wright Durocher at the American Constitution Society.

• Time To Fix Legal Industry's Environmental Pro Bono Problem

  

  As we observe Earth Month, it's sobering to note that pro bono environmental law work lags behind other practice areas — but the good news is that there are numerous organizations that can help lawyers get connected with environment-related pro bono projects, says Matthew Karmel at Riker Danzig.

• How Prosecutors Can End Cycle Of Intimate Partner Violence

  

  With 10 million people in the U.S. reporting that they experience intimate partner violence each year, it’s clear that traditional forms of prosecution are falling short, especially in small and rural communities, but prosecutors can explore new ways to support survivors and prevent violence, say Alissa Marque Heydari at John Jay College and David Sullivan, a district attorney.

• DOJ's Boeing Immunity Deal Violated Crime Victims' Rights

  

  The Northern District of Texas should support the arguments of 737 Max plane crash victims’ families, and hold that the U.S. Department of Justice violated the families' ability to provide input under the Crime Victims’ Rights Act when it secretly entered into a deferred prosecution agreement with Boeing, says Meg Garvin at the National Crime Victims Law Institute.

• Jackson Confirmation Hearings Should Examine Due Process

  

  In the upcoming U.S. Supreme Court confirmation hearings, senators should assess Judge Ketanji Brown Jackson’s approach to holding government actors accountable in the areas of qualified immunity and forfeiture, as revisiting shaky precedents on these topics could help guarantee due process for all, says Marc Levin at the Council on Criminal Justice.

• ABA's New Anti-Bias Curriculum Rule Is Insufficient

  

  The American Bar Association's recently approved requirement that law schools educate students on bias, cross-cultural competency and racism, while a step in the right direction, fails to publicly acknowledge and commit to eradicating the systemic racial inequality in our legal system, says criminal defense attorney Donna Mulvihill Fehrmann.

• Justice Reforms Call For Quick Action To Fill US Atty Spots

  

  U.S. attorneys play an important role in transforming the criminal legal system for several reasons, and they can restore integrity and independence to the U.S. Department of Justice, so President Joe Biden and Congress must move quickly to fill the remaining two-thirds of the top prosecutor seats, says Derick Dailey at Davis + Gilbert.

• Judge's Veto Of Arbery Hate Crime Plea Deal Is Not Unusual

  

  Contrary to media commentary, a Georgia federal judge’s rejection of the plea agreement between prosecutors and a defendant charged with hate crimes in the murder of Ahmaud Arbery is not actually surprising — it simply indicates the judge’s desire to retain discretion and allow all parties to be heard before making a just sentencing decision, says Dominick Gerace at Taft Stettinius.