Dormant Data: Why and How to Make Good Use of Deaths in Custody Reporting

By Matt Lloyd*

Volume 39.2

*  J.D. Candidate, The University of Texas School of Law, 2012; B.S. 2009, Kansas State University. I would like to thank Professor Michele Deitch for her guidance in developing this Note and the editorial staff at the American Journal of Criminal Law for all their patience and hard work. I would also like to thank my wife Kelly for her constant support and for being one of the greatest people I know.


From 2001 to 2006, roughly 3,000 individuals died each year while in the custody of state prison facilities across the United States. Another 1,000 died in locally run jails.  Many of these roughly 4,000 annual deaths are inevitable, but many are also preventable.  The latter category (i.e., preventable deaths) should never be viewed as an acceptable statistic.  The United States federal and state governments are, through their own criminal justice policies, responsible for who gets placed in custody and for how long.  They are also ultimately responsible for the conditions of such confinement.  Consequently, governments are obliged to meet the needs of individuals they place behind bars, and preventable deaths represent a categorical failure to meet that obligation.

Although courts have explicitly recognized this burden, they have promulgated a counterproductive standard for enforcing it.  By requiring a subjective showing of “deliberate indifference” to the plight of prisoners on the part of officials, courts have encouraged prison and jail officials to be ignorant of any systemic issues that have not become catastrophic.  There is no single solution to this conundrum, but significant progress can be made with a relatively simple step.  Deaths in custody (“DIC”) information can be used to encourage transparency and accountability in a system that currently lacks it.  This is information that we already have, and it can be used to assess and address major problems (on the national, state, and local scale) before they become catastrophic.  If DIC data is analyzed and findings are submitted to the relevant officials, willful ignorance becomes much less viable as a defense.  But more importantly than that, using DIC data in this way espouses a more constructive criminal justice policy—that justice officials should look towards affirmatively meeting their obligation to care for those in its custody, rather than doing just enough to avoid civil liability to inmates.

In Part II of this Note, I begin by discussing the current “deliberate indifference” standard that governs whether detainees’ conditions of confinement constitute cruel and unusual punishment.  This discussion will include the United States Supreme Court’s reasoning behind the standard, as well as the problems that having such a standard create.  Next, in Part III, I examine the current requirements governing the reporting of deaths in custody at both the federal and state levels.  In Part IV, I discuss realistic options concerning how DIC data may be used to have an immediate positive impact on our federal and state detention facilities, and how this impact may undo much of the danger associated with the United States Supreme Court’s “deliberate indifference” standard. Finally, I provide a few illustrations using currently existing DIC data in Part V. 

The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins

By Meghan Morris*

Volume 39.2

* J.D., 2011, New York University School of Law; B.A., 2008, University of North Carolina at Chapel Hill.  Many thanks to Professor Erin Murphy for her invaluable suggestions and critiques in the drafting process.  I am also deeply grateful to Laura Arandes for her encouragement and advice.  For my continuing education in the practice of criminal law and procedure, I am indebted to my friends and colleagues at the Colorado State Public Defender. I have also benefited greatly over the past couple of years from the guidance and advice of Cassy Stubbs, Betsy Tao, Bryan Stevenson, Randy Susskind, and Anthony Amsterdam. Finally, thanks are due to Scott Spillman and to my family for their unwavering support.


This Article addresses a new stage of interrogation, approved of for the first time in the Supreme Court’s 2010 decision, Berghuis v. Thompkins. This stage—the “decision zone”—is the period, however brief or prolonged, after officers have read a suspect his rights but before the suspect has decided whether to waive or to invoke those rights.  In Thompkins, the Supreme Court allowed interrogation during this stage, which lasted almost three hours in that case.  In Thompkins, the Supreme Court implicitly assented to prolonged interrogation before a suspect decides whether to invoke or to waive his rights, thus creating the decision zone.

This Article argues that existing precedents regarding trickery in interrogations address police behaviors only before a suspect is read his rights or after he has waived his rights and agreed to talk to police.  These precedents do not directly address trickery in the decision zone.  Such precedents are, in fact, overbroad when applied to interrogation in the decision zone because this interim period is the crucial time in which a suspect is deciding whether or not to waive his rights.  Courts must look at the constitutionality of police trickery during this period as a new question not controlled by existing precedents.

Under Maryland v. Seibert, police officers may not intentionally undermine the effectiveness of Miranda warnings.  This Article argues thattrickery in the decision zone may be barred by Seibert and other precedents in certain instances.  This Article proposes a two-factor test for deciding when trickery in the decision zone should be found unconstitutional.  First, a court must ask whether a given police practice has the intent and effect of undermining Miranda warnings.  Second, the court must ask whether the police practice has a tendency to produce false confessions.  These factors, rather than existing precedents regarding trickery in interrogations, should control the new constitutional inquiry into police behavior within the decision zone.

One-Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule After United States v. Kumar

By Andrew C. Adams*

Volume 39.2

* J.D. 2008, University of Michigan Law School; B.A. 2004, University of Texas at Austin.  Associate at Debevoise & Plimpton LLP and a member of the firm’s litigation department.  The views expressed herein are those of the author and do not express those of Debevoise & Plimpton LLP.  Sincere thanks to Morgan Adams, Derek Ettinger, Sean Hecker, Benedict Schweigert, Leigh Wasserstrom, and the editors at the American Journal of Criminal Law for their thorough and thoughtful comments on earlier drafts of this article.


This article addresses the ongoing discord among the federal courts of appeals with respect to the implications of the U.S. Sentencing Guidelines’ “one-book rule” and its constitutionality under the Ex Post Facto Clause.  A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses—even offenses predating that manual’s publication—is always permissible under the Ex Post Facto Clause.  The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes and the ongoing circuit split over the application of the Ex Post Facto Clause to the Sentencing Guidelines. This Article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions.  The Article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the one-book rule.  Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the one-book rule runs counter to the goals of the Sentencing Guidelines themselves—uniformity of sentencing—even if its application is ultimately constitutional.  The Article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the courts of appeals, and the Sentencing Guidelines themselves.

Objectifying and Identifying in the Theory of Excuse

By Anders Kaye*

Volume 39.2

*Associate Professor, Thomas Jefferson School of Law.


As fundamentally social creatures, healthy and normal human persons have a deep and well-developed capacity for identification with other persons.  We are susceptible to such identification when we see others as similar to ourselves, and especially when we have extensive, particularized knowledge about such other persons.  In this Article, I argue that identification plays an important role in our excusing practices.

To date, the leading naturalist and psychological accounts of excuse have made no room for identification.  Instead, they follow an influential naturalist account (“the objectification account”) in which all our excuses are explained by reference to either our “reactive attitudes” or the “objective attitude.”  In this Article, I offer an alternative naturalist account of excuse that makes room for identification; I describe identification and parse it into component judgments and attitudes; I show how these component parts are conducive to excusing and how they drive some of our most important excuses; and I explain how identification can help us understand a long-standing mystery in excuse law (tout comprendre, c’est tout pardonner).  Finally, I suggest that identification helps us understand why certain long-standing controversies in excuse theory persist, including debates about rotten background excuses and about the significance of causation and determinism for excuse.

Having laid out the identification account, this Article also shows that identification has important ramifications for excuse theory.  First, where the conventional objectification account makes excusing a disreputable practice, the identification account shows that excusing is connected to our social and imaginative capacities, and thus to some of the best parts of our psychology.  Taking identification into account, then, should make us more receptive to innovation in and expansion of the criminal law excuses.  Second, where the objectification account resists excuses rooted in formative character influences, the identification account is open to such excuses.  And, third, where the objectification account denies the possibility of causal excuses, the identification account offers reasons to think such excuses are plausible.  These are deep and important differences between the two accounts, differences that do not emerge clearly until we have a systematic account of identification in mind.

In the end, the identification account gives us a naturalist account of the excuses with which we can identify.  Where the objectification account yokes excuse to a weird and detached psychological outlier (the objective attitude), the identification account connects excuse to a central and valued feature of our social psychology.  In this way, it gives us a picture of the excuses that feels natural, intuitive, and connected to what we value most in ourselves, and it helps us understand why we persist in the practice of excusing.

Qualified Support: Death Qualification, Equal Protection, and Race

By Alec T. Swafford*

Volume 39.1

* J.D. Candidate, The University of Texas School of Law, 2012; B.A., 2009, Rice University.  Law Clerk to the Honorable Phyllis Kravitch, United States Court of Appeals for the Eleventh Circuit, 2012–2013 term.  The author would like to thank Professor Cary Franklin for her advice, guidance, and critiques.  Also, the author would like to thank Clinical Professors Rob Owen, Maurie Levin, and Jim Marcus for being constant sources of inspiration in their representation of inmates on Texas’s death row.


The trial of Mumia Abu-Jamal, an African-American, for murder demonstrates how pernicious death qualification can be for minority prospective jurors.  In Philadelphia, which at that time had a population that was forty-four percent African-American, the prosecutor was successful in striking twenty African-Americans from the venire using death qualification. The prosecutor then used his peremptory challenges to strike another eleven African-American prospective jurors who had not expressed any opposition to the death penalty, resulting in a jury that did not have any African-American members. Prosecutors in general have been known to utilize the death qualification process to produce a jury they believe is more favorable to the state.

Death qualification has been described as an ethnic cleansing of the jury pool in capital cases due to its disproportionate effect on minority populations. Jurors must be “death qualified” in order to sit on a capital jury. During death qualification, prospective jurors are questioned concerning their attitudes on the death penalty. Prospective jurors may not be challenged for cause based on their views on capital punishment unless those views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oath.

Death qualification has a significant racial dimension.  Much of the academic literature and litigation concerning death qualification has focused on its tendency to create juries that are more “guilt prone.” The racial effects of death qualification are just as dangerous.  I will argue that death qualification should be ruled unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  I will also argue that the Equal Protection Clause, as interpreted in Batson v. Kentucky, could be applied to racially discriminatory applications of death qualification in particular trials.

In Part II, I will show how current Supreme Court jurisprudence on death qualification has created a system that accords too much discretion to the actors at the trial level, allowing room for racial discrimination to flourish.  In Part III, I will explore the historical and sociological evidence behind the public support of capital punishment and the opposition to it.  Support for capital punishment, which is directly related to the likelihood that a juror will be struck for cause under death qualification, continues to be heavily influenced by general racial attitudes and by past and present racism in the implementation of capital punishment.  I will then explore the damaging effects death qualification has on the criminal justice system in Part IV.  In Part V, I will discuss the most important challenge to death qualification to date, Lockhart v. McCree. Finally, in Part VI, I will apply Equal Protection analysis to death qualification.

Providing Immigration Advice During Criminal Proceedings: Preempting Ineffective Assistance of Counsel Claims When Non-Citizen Aliens Seek to Withdraw Guilty Pleas to Avoid Adverse Immigration Consequences

By Maryellen Meymarian*

Volume 39.1

*J.D., C.P.P., Adjunct Professor, George Mason University; former Associate Legal Advisor and Assistant Chief Counsel for the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and former Assistant District Attorney for the New York County District Attorney’s Office.


Criminal aliens have long been deported from the United States.  In the past decade, U.S. Immigration and Customs Enforcement (ICE) has stepped up efforts to identify, detain, and remove criminal aliens incarcerated across all jurisdictions. The possible immigration consequences of criminal actions are now at the forefront of many criminal pleas.  The Supreme Court’s recent decision in Padilla v. Kentucky now mandates that defense counsel inform non-citizen alien clients whether a possible criminal plea carries a risk of deportation.  The complexities of the Immigration and Nationality Act (INA) only add to the difficulties faced by defense attorneys when providing advice to non-citizen aliens concerning pleading to criminal dispositions.  Failure to provide competent and accurate advice concerning potential deportation consequences now clearly constitutes a Sixth Amendment violation.  This Article examines how an alien’s residence status may be altered by a criminal plea; how all parties in the criminal justice system need to understand the potential immigration consequences of a given plea; and steps that should be taken to preempt future attempts to withdraw convictions based on a failure to inform an alien of potential immigration consequences.