Due Process

Recent Case: Cook v. Hopkins

January 6, 2020

The Supreme Court has repeatedly opposed the establishment of an affirmative right of protection against private violence through the Due Process Clause. Some circuit courts have carved out an exception where state action exacerbates or creates the victim’s danger. Recently, the Fifth Circuit in Cook v. Hopkins upheld circuit precedent in declining to apply this…

Recent Case: The Modern Sportsman v. United States

November 24, 2019

On October 1, 2017, a man opened fire at the Route 91 Harvest Music Festival in Las Vegas. Fifty-eight people were killed and over 500 injured as Stephen Paddock fired more than a thousand rounds into the crowd. Paddock was able to fire so many rounds because his guns were equipped with “bump stocks,” devices…

Redefining Strickland Prejudice after Weaver v. Massachusetts

May 22, 2018

Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to…


Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity?

April 17, 2018

Today, the Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b)…

Immigration Enforcement Under Trump: A Loose Cannon

February 21, 2018

The Trump administration’s immigration enforcement policy is a loose cannon, targeting noncitizens who have long been protected under prosecutorial discretion. The President has unleashed a policy that routinely targets anyone who is undocumented, not just “bad hombres.” This post examines the discretion used after a person has received a deportation (“removal”) order and how the…

Replacing Judges with Computers Is Risky

February 20, 2018

Adopting technology for the sake of having it is an unwise move. Last year, the California Judicial Council proposed that California’s criminal courts jump on a failing bandwagon to inhibit and effectively replace judicial discretion with computer-based algorithms. The present judicial system already assesses each defendant, their previous criminal history, and ties to the community….

Costs of Money Bail to Justice

October 17, 2017

More than 200,000 bail bonds are posted in California each year, generating $308 million in non-refundable premium fees from accused persons, their families, and friends who post bail for them. Being detained in custody pretrial, even for a short period of time, can threaten an individual’s employment, housing, financial stability, and family. With roughly 90%…