Foreword: A New Frontier in Criminal Justice Reform

Each author featured in this issue of the Wake Forest Journal of Law & Policy explores different aspects of the criminal justice system in the United States, and they come to the same conclusion that there is widespread consensus that in order for our system to fully embody the ideals of our nation and our great Constitution, critical reforms must occur at every stage within the criminal justice process. There is currently strong momentum and bipartisan support to encourage changes that will impact not only those currently imprisoned, but also those in the pipeline to prison, and recent policy shifts suggest that we are at a crossroads in criminal justice. However, meaningful reforms will occur only with bold and innovative solutions at each stage of the criminal process, beginning with policing, which represents the entry point into the criminal justice system. Ensuring humane treatment of those convicted and sentenced to prison for their crimes, as well as providing needed services to ease the transition of those reentering society from prison, are all on the reform agenda. Policymakers have announced several important criminal justice policy changes that signify that the nation is indeed in the midst of a criminal justice revolution. My introduction will contextualize the articles and discuss how the proposals they analyze compliment these recent policy shifts and embody the types of changes needed to ensure sustainable and effective criminal justice reforms. This abstract has been adapted from the author\u27s introduction

Hate Crime Laws to Protect Police Are Misguided

JURIST Guest Columnist Kami N. Chavis of Wake Forest University School of Law discusses the recent proposals to add police officers to hate crime statutes

Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the HCPA ). The HCPA significantly expands the federal government\u27s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, or national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim\u27s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward overfederalization of the criminal law. This Article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government\u27s authority to prosecute such crimes. Instead, this Article refocuses the debate to address new issues regarding the federal government\u27s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this Article proposes a model of prosecution that ensures the federal government\u27s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this Article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, inter alia, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This Article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States

Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors

It has become clear that there is a systemic problem with holding police accountable, as many officers have walked away scot-free in the wake of a number of recent police brutality incidents, including the tragic deaths of Michael Brown, Eric Gardner, and Freddie Gray. After assessing a number of proposals to address the accountability problem, this Article suggests that a focus on the appointment of special, independent prosecutors to handle these cases is important in order to hold police accountable for their brutal acts

New Governance and the New Paradigm of Police Accountability: A Democratic Approach to Police Reform

This Article proposes that policymakers should draw from the emerging New Governance theoretical framework--particularly democratic experimentalism--in order to develop strategies to successfully reform law-enforcement agencies. Modem police departments function like administrative agencies, and as such, they are susceptible to the same deficiencies that traditional agencies experience in other administrative contexts. Given the traditionally insular nature of law-enforcement agencies, the need for political legitimacy in the reform process is amplified in the policing context. Therefore, in order to eliminate patterns of police misconduct and corruption, reform measures should embody characteristics that promote stakeholder participation and local experimentation. This abstract has been adapted from the author\u27s introduction

Future of the Fourth Amendment: The Problem with Privacy, Poverty and Policing

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a search has occurred within the meaning of the Fourth Amendment. The Supreme Court\u27s recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine\u27s importance when determining whether there has been a search triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine\u27s bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence. This Article argues that while Jones has reiterated that a physical trespass may trigger Fourth Amendment protection, this holding alone will not result in any appreciable strengthening of the privacy rights of the urban poor. The manner in which urban, inner-city communities are over-policed and the aggressive law enforcement strategies employed in these areas, along with the current constitutional regime that has allowed these practices to flourish, are primarily responsible for the privacy inequities. This Article will explain how current Fourth Amendment standards afford less protection to economically disadvantaged citizens (particularly, the urban-dwelling poor) when compared with more affluent citizens. I will also argue that this jurisprudence is largely unchanged by the Court\u27s recent decision in U.S. v. Jones. This abstract has been adapted from the author\u27s introduction

Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim\u27s claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities\u27] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication that a police department may be engaging in racial profiling has a detrimental and far-reaching impact not only on the individuals who experience it first-hand, but also on other members of the targeted community. Ultimately, this pernicious practice threatens to undermine legitimacy in law enforcement and the criminal justice system for large segments of society, which impacts society as a whole. [This Article] concludes by suggesting proactive remedies institutions and policymakers should consider to alleviate the tensions between communities and police officers with respect to racial profiling. Data collection efforts are imperative to educating the public and police agencies about racial profiling, but these efforts fall short as a long-term remedy. Therefore, in addition to data collection during traffic stops, this Article proposes several policy solutions that the federal government and state legislatures should implement to address racial profiling within local law enforcement agencies. This abstract has been adapted from the author\u27s introduction