Expert Analysis

• 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.

• 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.