Beyond Bail

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system. In theory, nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet, the proposition that nonmonetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the conditions are necessary to avoid the risk or risks that fuel them. Defendants-many of whom are unrepresented at these hearings-may be ill-equipped, financially or otherwise, to comply with these conditions. Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detention. This Article argues that the reduction or eradication of monetary bail alone has not, and will not, ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginalized defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying monetary bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release-the fee charged in the form of bail-but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial

Nullification as Law

The rule of law is central to our notion of governance and our legal system The ideal of a knowable regular public law shimmers in the discourse of our democracy It stands in sharp contrast to the arbitrary and often anarchic law of men in which those with absolute power rule absolutely But the devil is always in the details To move past the idealism is to enter a contested realm where competing theories seek to claim the mantle of the rule of law While this article cannot claim to resolve the dispute over the precise meaning or construct of the rule of law it does seek to consider the questions that jury nullification raises in the context of our republican democracy In so doing a more nuanced conception of the rule of law emerges “ one grounded in the daily realities of the lives the law would govern and that would include if not at times encourage the possibility of nullificationJury nullification questions the formal paradigm surrounding law and seeks to inject the law with communal values The audacity of a juror defining law speaks of some small space where law is constructed and given meaning outside the halls of formal government It imagines a law that is more than the written word of statutes executive orders or judicial opinions but is an interplay between the written word and the citizen\u27s interpretation of that word In its very nature nullification points to the citizen juror as a source of the law itself It pushes against static constructs of law and seeks to inject ideals of justice and equity into the larger body of law Equally importantly it recognizes the democratic function of the criminal jury and asserts that nullification promotes that functionIn placing nullification within the context of the rule of law this article considers how the citizen\u27s relationship with the government has developed in light of changing notions about the criminal jury\u27s role in the interpretation of law It concludes that nullification is not inconsistent with notions of the rule of law and instead ensures an active role for the citizen in the construction and deconstruction of the law itsel

The Resistance Defense

This article explores a previously ignored set of defendants ” those who choose to rely on a defense of resistance From Warren Jeffs the polygamist recently convicted of child rape in Texas to John Brown the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it Though their belief systems varied they appear throughout history in moments of social or political crisis and challenge the capacity of the law to encompass their story While their eventual convictions are not surprising their reliance on a defense of resistance highlights two compelling but underexplored components of criminal law First the procedural rights that compose the right to a defense are more than individual rights they have a communal value The defendant may utilize them to challenge the accusation but the community relies on them as well to legitimate the process and outcome If a defendant forgoes these protections the process is curtailed and questions of its legitimacy inevitably follow Second these procedural rights have a substantive component They help to define notions of guilt and appropriate punishment If a defendant chooses to forgo these rights they effectively alter what it means to be convicted or to deserve punishment skewing the meaning of the law itself In a time when political identity and legitimacy are in play with movements from Occupy Wall Street to the Tea Party and the Supreme Court\u27s decisions in Apprendi and Crawford place renewed faith in the citizen jury to construct meaning in the law the question of how the law should respond to competing narratives looms Resistance defendants serve as a powerful reminder that the system is only as strong its ability to contemplate a counternarrative and that the law ultimately draws its meaning from the lives of the governed If the system is unable to encompass some lives and their stories it loses some meaning and risks becoming foreign to the citizens themselves This article examines the causes and consequences of the dilemma posed by the resistance defense and proposes ways the criminal justice system might adapt and improve in respons

The Criminal Jury, Nullfication, and Open Governance

[Extract] The movement towards open governance has encouraged not only transparency, but direct citizen participation in government. In reality, however large swaths of the actual experience of governance and law-making unaccounted for. Even as notions of governance have evolved, they seem to hover around an underlying notion that there is a separation between those who make laws and those to whom the law is applied. To the extent that there is overlap in these realms, it is that those who occupy the formal spaces where law is created are also subject to those laws. Ordinary citizens are the recipients, not the creators, of law. Even as proponents and theorists have recognized that the call to open governance pushes those in power to account for law-making that occurs through interpretation, the realm of that interpretation remains in those narrow spaces of formal governance. Thus, even among those open governance advocates who would move governance away from its positivist and formalist roots, the power of law-making remains in particular and designated spaces, separated from the very people whom the law would govern.Jury nullification is rarely discussed in the context of open governance movements. Nullification, or the possibility that a citizen juror would interpret the law, seems counter to the primary ideals of the movement’s allegiance to transparency and order – that laws are knowable in advance of any particular case, created and applied in a uniform manner, and there is a separation between the governed and the government establishes this order, that they are knowable promotes transparency. But this failure to account for jury nullification (or the role of jurors in the open governance movement) is a mistake. To the extent that traditional models of governance and the rule of law establishes a distant (and from the perspective of the citizen, passive) relationship between the citizen and his government; nullification challenges this relationship. It opens the possibility that a juror, with no greater qualification than the fact of his citizenry (and his ability to survive the voir dire process) is an appropriate source of law. The citizen’s role shifts from the law’s passive recipient to the law’s active creator, through his interpretation and application of the law as juror. With this shift, a new conception of law is born – one flowing from both formal and informal sources, which includes jurors engaged in nullification. This conception of law, and governance under it, is not only a more accurate presentation of law-making in a democracy; but counter intuitively it supports transparency by directly involving the citizen in the law-making process. Accepting that jurors play a vital role in open governance, recognizes that the value of the law is not only in its predictability, but also in its ability to be responsive to the citizen’s own lives and to conform with the citizen’s expectations and understanding of the law

Beyond Bail

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system. In theory, nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet, the proposition that nonmonetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the conditions are necessary to avoid the risk or risks that fuel them. Defendants-many of whom are unrepresented at these hearings-may be ill-equipped, financially or otherwise, to comply with these conditions. Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detention. This Article argues that the reduction or eradication of monetary bail alone has not, and will not, ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginalized defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying monetary bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release-the fee charged in the form of bail-but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial

Graffiti, Speech, and Crime

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric It is not the shout of revolution to the gathered protesting masses or the political pamphlet flung from a 1920s window Graffiti is not the obscenerenderedpoliticaljacketed protest of war or a flag set aflame in the name of reclaiming patriotism It is an illicit scrawl It is damage and defiance rolled into one from the moment of its creation Graffiti is a crimebrbrUnlike more celebrated examples of free speech graffiti earns no safe harbor from the First Amendment When asked to choose between the tag that appears in the middle of the night on someone else\u27s property and the possibility that the tag might enjoy an embedded meaning First Amendment jurisprudence does not wax philosophical about the values of equality or democracy or the utility of a free marketplace of ideas Under criminal law graffiti is regulated as a property offense or nuisance offense based on the damage it causes with no consideration of the message it containsbrbrThis Article argues that this rote calculation is wrong While graffiti undoubtedly damages the property to which it is attached to ignore the communicative component of graffiti is to ignore its role as a medium for the most marginalized of voices From MeToo to Black Lives Matter to youth in occupied territories to those that resist occupation graffiti lays claim to a power and purpose that cannot be realized in other more bounded speech forums Accordingly this Article proposes a speechbased affirmative defense to graffiti crimes This defense would not be an automatic getoutofjailfree card Rather it would permit jurors to consider the expressive value of graffiti in their deliberations It would allow the men and women who bear witness to the graffiti and the damage it may cause in their own communities to make the ultimate decision whether a criminal sanction is appropriate or whether it is speech worth savin

Policing Protest: Speech, Space, Crime, and the Jury

Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, and manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others. To address these concerns, this Feature makes two critical normative claims. First, scholars and courts alike have failed to prioritize access to spaces properly. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence, at times, is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant\u27s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech