Criminal Justice Program Roundtable Addresses Scholarship Ranging from Police Surveillance to Civil Death

Five legal scholars presented their current work at a two-day conference hosted by the Vanderbilt Criminal Justice Program at the Law School on Nov. 3 and 4 organized by Program Director Chris Slobogin, who holds the Milton R. Underwood Chair in Law.

Kate Weisburd of George Washington Law presented “Criminal Procedure Without Consent,” which addresses a growing consensus among scholars and advocates that consent searches by police are pure fiction and should be abolished or significantly reformed. Weisburd contends these critiques of consent apply with equal force to what she terms “secondary” forms of consent, where the law presumes a voluntary choice, such as the free-to-leave test for what constitutes a Fourth Amendment seizure, implied consent for purposes of allowing license revocation for failure to submit to a breathalyzer, the third-party doctrine, waiver of adjudicative rights, and agreements by people charged with or convicted of a crime to be subject to “alternatives” to incarceration such as ankle monitoring, cellphone surveillance, or court supervision. She argues that eliminating consent in these contexts would force police, prosecutors, and judges to articulate an alternative legal basis to deny someone privacy or restrain their liberty. Her inquiry also raises broader questions about what role “choice” should play in various criminal procedure doctrines. Chris Slobogin served as commentator.

Michael Gentithes of the University of Akron Law presented “Grand Jury Discretion in Officer Involved Shootings,” which addresses the role of the grand jury in assessing the evidence when police officers fire their weapons and a civilian is killed. The criminal justice system relies upon grand juries to initially assess the evidence and decide whether to pursue criminal charges. Although grand jurors have the grave responsibility of administering justice under dreadful circumstances, Gentithes asserts they have little control over the evidence they consider and the conclusions they might reach. He proposes that grand jurors in officer-involved shootings be empowered to call for further investigation and possible additional charges, recommend changes to substantive criminal law, recommend staffing changes for departments, and refer possible changes to relevant policies and training procedures to internal department experts. He also proposes that grand jurors be permitted to openly nullify some charging recommendations made by overzealous prosecutors. Kenneth Nunn of Florida Law served as commentator.

Barry Friedman of New York University presented “Obstacles in the Way of a Too Permeating Police Surveillance, which highlights the fact that the collection, retention, and use of the rapidly increasing amount of data now collected by policing agencies is almost entirely unregulated. “Policing agencies do what they want, how they want, without much in the way of public transparency,” Friedman asserts, noting that they also “do what they can to obscure what is happening.” His article examines solutions to this problem from the perspective of social choice, addressing ways to “return the rule of law to this deeply troubling practice.” Farhang Heydari of Vanderbilt Law served as commentator.

Maria Ponomarenko of the University of Texas presented “Localism and Preemption Through a Criminal Justice Lens, in which she examines a new form of “criminal justice preemption”—state laws in red states designed to undo various blue city reforms. These include laws prohibiting localities from slashing police budgets and declaring themselves immigrant “sanctuary” jurisdictions, as well as bills targeting so-called “progressive” prosecutors who have announced plans to deprioritize or stop enforcing entirely certain offenses. The leading response to the “new preemption,” both in the criminal justice space and in the local government literature, has been to double-down on local control and to call for stronger “home rule” protections against state interference in local affairs. Ponomarenko argues that those concerned about mass incarceration and criminal justice reform should not be so quick to embrace the localist turn. She warns that they should be especially wary of proposals to constitutionalize localism through a revitalized principle of home rule and suggests a narrower set of critiques for why some red state proposals may be problematic. Donald Braman of George Washington Law served as commentator.

Lisa Griffin of Duke Law presented two book chapters on “The Limits of Lie Detection: Honesty Without Accuracy in the Criminal Justice Process.” Lie detection inspired many rules of criminal procedure, but these rules focus so narrowly on deception that they can limit engagement with witnesses and contribute to mistakes in criminal adjudication. Griffin discussed the core insight of her book: that a witness “not lying” and a witness “telling the truth” will not necessarily be the same thing.  Her book offers a new theory about the distinction between honesty and truth and suggests new thinking about how procedural rules could address disinformation that comes from honest mistakes. Lauren Sudeall of Vanderbilt Law served as commentator.

Jenny Carroll of University of Alabama Law presented “The Hazards of Civil Death,” which addresses laws in some states that disenfranchise convicted individuals and exclude them from juries. Disenfranchisement and exclusion from jury service of incarcerated or convicted individuals disproportionally impacts marginalized populations who are also disproportionally impacted by criminal legal systems. Carroll’s paper argues that, by excluding access to the ballot and jury boxes for incarcerated or convicted people, states undermine the democratic function of both rights. She pushes back against a construction of voting and jury rights that speaks more about who gets to stay in power than about community inclusion and argues that states should facilitate the extension of each right to incarcerated or convicted people.  Ben Grunwald of Duke Law served as commentator.