Expert Analysis

• High Court Death Penalty Ruling Presents A Troubling Future

  

  While the U.S. Supreme Court’s recent decision in Cruz v. Arizona — which said the Arizona high court misinterpreted state criminal procedure and warranted federal review was — came as a pleasant surprise in its prioritization of due process, the 5-4 ruling also portends poorly for the future with a low bar in death penalty cases, says Christopher Durocher at the American Constitution Society.

• What Landmark Ruling Means For Civil Rights Suits In Nevada

  

  The Nevada Supreme Court’s recent ruling in Mack v. Williams ends the use of qualified immunity in the state, and though the defense will likely be revived by the Legislature, the decision provides a framework for litigants to hold state actors accountable for violations of state constitutional protections, says Austin Barnum at Clark Hill.

• We Can Ensure Public Safety And Still Reduce Incarceration

  

  Recent progress toward reducing jail and prison populations remains fragile as tough-on-crime policies reemerge, but American history shows that we don’t have to choose between less violence and lower incarceration rates — we can have both, says Jeffrey Bellin at William & Mary Law School.

• War On Drugs Is Cautionary Tale For Abortion Prosecution

  

  As state abortion bans proliferate, prosecutors have an obligation to learn from the devastating lessons of the war on drugs — which disproportionately affected communities of color — and vow not to prosecute individuals’ reproductive health care-related decisions, says Dekalb County District Attorney Sherry Boston.

• The Most-Read Access To Justice Law360 Guest Articles Of 2022

  

  Law360 guest experts weighed in on a broad slate of emerging access to justice issues last year, ranging from evidence of ineffective counsel to opportunities for nonlawyers to provide legal help and the presumption of innocence.

• Understanding Illinois' First-Of-Its-Kind Law Nixing Cash Bail

  

  A new law taking effect Jan. 1 that makes Illinois the first state to eliminate cash bail has been amended to correct some of the many concerns of those who opposed the original, flawed piece of legislation that was rushed through, and will make sweeping changes to how criminal justice operates in Illinois, say Joe Tabor and Perry Zhao at the Illinois Policy Institute.

• Defense Attorneys Can Help Limit Electronic Monitor Overuse

  

  Though electronic monitoring is increasingly promoted as an alternative to incarceration for people awaiting trial, on probation or parole, or undergoing immigration proceedings, its effectiveness is unsupported by evidence and it results in clear harms, so defense attorneys should consider several strategies to challenge its overuse, say experts at the ACLU.

• DOJ Can't Justify Its Failure To Get Data On Deaths In Custody

  

  The U.S. Department of Justice incorrectly claims that a law requiring it to collect meaningful data on how many people die in government custody has somehow limited its ability to do just that — and every failure to study these deaths is a missed opportunity to prevent others, says David Janovsky at the Project On Government Oversight.

• How Civilian Attorneys Can Help Veterans

  

  With legal aid topping the U.S. Department of Veterans Affairs' annual list of unmet needs of veterans facing housing insecurity, nonmilitary volunteer attorneys can provide some of the most effective legal services to military and veteran clients, say Anna Richardson at Veterans Legal Services and Nicholas Hasenfus at Holland & Knight.

• Prison Abuse Victims May Get Justice In NY Look-Back Term

  

  As New York opens a one-year window for survivors of adulthood sexual abuse to bring otherwise time-barred claims, incarcerated individuals who were abused by prison staff have an opportunity to seek redress, and can rely on a recent federal court decision to assess potential remedies, says Jaehyun Oh at the Jacob D. Fuchsberg Law Firm.

• As 4th Circ. Reminds, Carrying Cash Is Not A Crime

  

  The Fourth Circuit’s recent decision in U.S. v. McClellan makes clear that unwillingness or inability to use a bank account does not necessarily make someone a criminal, and that the government needs evidence of wrongdoing before seizing and keeping assets, say Robert Johnson and Caroline Grace Brothers at Institute for Justice.

• Algorithms Have Potential To Reduce Sentencing Disparities

  

  Criminal legal system algorithms have mostly been used to assess the risk posed by defendants in settings like pretrial release, bail determinations, sentencing and parole supervision, but predictable modeling can also be used to reduce sentencing disparities and overly punitive outcomes, say ACLU researchers and collaborators.

• 2 Legislative Reforms Would Address Many Immigration Woes

  

  Congress should pass currently pending legislation to create an Article I immigration court and update the registry process — reforms that would shield immigration courts from political pressure, enable many longtime residents to cure their immigration status, and alleviate case backlogs, says retired immigration judge Dana Leigh Marks.

• Mich. Ruling Widens Sentencing Protections For Young Adults

  

  The Michigan Supreme Court’s recent decision in People v. Parks, holding that a mandatory life-without-parole sentence for an 18-year-old violated the state’s constitution, builds on a nascent trend, based in neuroscience, that expands protections for young people over 17 who are charged with serious offenses, says Kimberly Thomas at the University of Michigan Law School.

• Bodega Worker Case Exposes Key Flaw In NY Legal System

  

  The controversial murder case involving bodega worker Jose Alba reveals New York prosecutors’ common practice of charging first and investigating later — a systemic failure that has devastating consequences for individuals and undermines the presumption of innocence, says Michael Bloch at Bloch & White.