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.