An NTSB for Capital Punishment

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow the air crash model, not the car crash model. Capital cases should be handled by an elite, nationwide unit of prosecutors and investigators who travel to capital-murder sites the way the NTSB travels to airplane and other catastrophic crashes. As the number ofdeath sentences dwindles each year, states have incentive to enter into an NTSB model that allows them to continue using capital punishment without having to handle the complicated cases themselves. This Symposium Essay argues that capital punishment as currently conducted at the local level is afailure, but that the death penalty can be justified if carried out by an elite, national team of lawyers and investigators

Post-Trial Pleas Bargaining in Capital Cases: Using Conditional Commutations to Remove Weak Cases from Death Row

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal cases approach ninety-five percent in many jurisdictions. Because the government has little incentive to bargain, defendants slowly churn their way through the formal appellate and habeas process. The lack of post-trial bargaining makes perfect sense in ordinary criminal cases. It does not make as much sense in death-penalty cases, however. Death sentences are followed by decades of litigation. And, more importantly, challenges to death sentences are often successful. Capital cases are reversed at alarming rates, and re-trials typically follow the reversals. Faced with years of appellate litigation that it might not win, and the prospect of a re-trial and another slew of appeals, the State should have an incentive to bargain in its weakest cases. And the convicted individualfaced with a death sentencelikely has an even stronger incentive to bargain. This Article argues that governors should not simply think about clemency as a tool to prevent morally questionable executions. Rather, governors should regularly exercise their commutation power as a form of plea bargaining to clear weak cases out of the system. In exchange for inmates foregoing further appeals, governors could commute death sentences to terms of imprisonment. Clemency bargaining fits squarely within governors’ unreviewable commutation power and would save tens of millions of dollars by ending decades of unruly litigation

Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment

Prosecutorial Dismissals as Teachable Moments (and Databases) for the Police

The criminal justice process typically begins when the police make a warrantless arrest. Although police usually do a good job of bringing in the “right” cases, they do make mistakes. Officers sometimes arrest suspects even though there is no evidence to prove an essential element of the crime. Police also conduct unlawful searches and interrogations. And officers make arrests in marginal cases—schoolyard fights are a good example—in which prosecutors do not think a criminal conviction is appropriate. Accordingly, prosecutors regularly dismiss cases after police have made warrantless arrests and suspects have sat in jail for days, or even weeks. In a functioning criminal justice system, we should expect prosecutors to use dismissals as “teachable moments” for the police so that officers can avoid making incorrect and unnecessary arrests in the future. Yet, as this Essay documents, prosecutors do not always notify police about the errors that led to their cases being dismissed. This Essay proposes that prosecutors inform police officers that their cases were dismissed and of the reasons for the dismissal. This information will educate police officers about the elements of crimes in the penal code, the realities about which cases are difficult for prosecutors to prove, and the charging policies of the prosecutor’s office. Dismissal information will enable police officers to better decide when to make warrantless arrests, and it should reduce the number of weak cases that are input into the criminal justice system in the first place. In turn, reducing case inputs will benefit overburdened criminal justice actors—prosecutors, public defenders, judges, and court staff—by enabling them to spend more time on cases that will not be dismissed outright. And having police avoid unnecessary arrests will benefit defendants by avoiding needless incarceration and the cascade of other repercussions that follow an arrest. This Essay also proposes that prosecutors—particularly in large offices— create a dismissal database that will identify problem officers who repeatedly bring in weak cases that have to be dismissed. Prosecutors can then recommend that police departments provide further training to those officers. A database might also limit the moral-hazard problem of police being judged only on their arrests, rather than on case resolutions. Finally, prosecutors should embrace this proposal because a dismissal database would not dramatically increase the amount of Brady evidence prosecutors would be required to disclose

Google Glass While Driving

Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using” Glass are practically unenforceable because drivers could easily claim the devices were turned off or that they were being used for lawful functions—such as phone calls or GPS directions—that are allowed under texting while driving statutes. The lack of a clear prohibition on Google Glass while driving is troublesome. Social science evidence demonstrates that using hands-free devices while driving creates “cognitive tunnel vision” that drastically reduces drivers’ mental focus on the road. After analyzing the nation’s distracted driving laws and reviewing the social science evidence, this article proposes a statutory framework for effectively banning Google Glass while driving

Is Texas Tough on Crime but Soft on Criminal Procedure?

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas\u27s reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on crime but generous on criminal procedure