UCLA Criminal Justice Law Review

This Article series argues that the U.S. Supreme Court’s excessive force jurisprudence from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law-and-order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of modern conservatism, which developed as a backlash against various social movements like the Civil Rights Movement in the 1960s and the spontaneous urban rebellions that characterized the decade.

Part I of this Article series examines fear from a biological, political, and sociological perspective. It highlights how most Americans impute reasonability to statistically unjustifiable perceptions of danger. Part I also examines the concept of reasonableness and analyzes the native and inevitable partiality of the standard. Finally, Part I explores the relationship between the social value of unarmed victims of deadly force and the perceived reasonableness of an officer’s use of such force. It posits an inverse relationship between the perceived social status of the victim and the degree of statistical unreasonableness the law is willing to tolerate.

The lower the victim’s rank on America’s racial hierarchy—the hierarchy created by nineteenth century pseudo-scientist Samuel Morton to justify slavery—the more likely decisionmakers are to find a statistically unjustifiable fear to be reasonable. African Americans are ranked the lowest. The same presumption of Black inferiority that Taney so boldly proclaimed in Dred Scott lies covertly beneath the contemporary Court’s decisions involving unarmed police killings.

Part II of this Article series discusses the sea change in excessive force standards from the common law’s reasonableness standard to the current “rationalized fear” or “new dread” standard. Part II chronicles the change from different social, institutional, and legal perspectives, which have been factors influencing the sea change. These factors include: (1) the erosion of the common law right to resist an unlawful arrest; (2) the evolution of the modern police force; (3) the development of the law-and-order Supreme Court after the social tumult in the 1960s and the simultaneous development of radical social conservatism; (4) the Court’s holding in Graham v. Connor which was the first to express the shift legally; (5) the culture of police accountability encouraged by the law-and-order Supreme Court; and (6) the judicial creation and expansion of the qualified immunity doctrine. Part II exposes how the new dread standard operates by providing evidence that distills the current, amorphous excessive force rule into an articulable legal standard reflecting its true effect and intent.

This Article proposes a new data-driven approach that can be employed to help reduce postarrest disparities in criminal case outcomes in the United States: the unwarranted disparity statement. In Part I, the Article documents the existence of unwarranted disparities in postarrest criminal case outcomes, highlights structural reforms that have been implemented to address these disparities, and argues that a data-driven approach that helps to reduce these disparities in the short term is needed. Part II describes three data-driven approaches that have been proposed or employed to address postarrest case outcome disparities and identifies key limitations of each of these approaches that are not present with the unwarranted disparity statement. In Part III, the Article provides a basic framework for the unwarranted disparity statement approach and describes the content of unwarranted disparity statements. Part IV provides an empirical illustration of how the unwarranted disparity statement approach would work in practice using data from the 2009 State Court Processing Statistics. Part V assesses the strengths and limitations of the unwarranted disparity statement approach. Last, in Part VI, the Article concludes by making the case that the unwarranted disparity statement should be employed as a complement to, not a substitute for, structural change efforts to the criminal legal system.

Allowing agents to narrate the course of their investigations, and thus present juries damning information that is not subject to cross-examination, would largely abrogate the defendant’s rights under the Sixth Amendment and the hearsay rule.

On an imperfect American criminal legal landscape, evidence about a defendant’s inability to appropriately perform grief about and/or towards a victim often colors how judges, juries, and the public understand their relationship to criminality. It is on this imperfect American criminal legal landscape that the subject of this paper—grief performance and its relationship to constructions of guilt—is born.

I argue that a real ritual dissonance transpires when an individual loses someone close to them to a traumatizing form of death—that is, in an extremely violent or unexpected way. On the one hand, one’s body finds itself expected to conform to social norms regarding grief and mourning. On the other, one’s experience is so anomalous as to potentially make it unfathomable for them to do so. The resulting grief performance is one that is at once produced by the grieving self to process incomprehensible trauma and recognized by a perceiving community as a social oddity, a ritualized failure incapable of being understood by the surrounding community. Because the community cannot comprehend the griever’s performance, suspicion begins to surround the griever. People begin to realize, “she did not cry”; “she was cold”; “she did cartwheels”; “she spoke on television”; “she spent exorbitant amounts of money,” and so they assume she must have had a hand in orchestrating the death of the person close to her. This process can be understood as creating a “grief-guilt” complex, as improper grief performance produces and generates presuppositions of a person’s guilt.

As I demonstrate, the construction of a grief-guilt complex does not live in isolation—if it did, the isolated phenomenon would be theoretically interesting but pragmatically insignificant. Instead, the criminal legal system absorbs the assumptions that a person who performs inappropriate or non-normative grief must necessarily be guilty of a crime. To precisely demonstrate the ways in which this unfolds, I focus on three high profile cases: Amanda Knox, Pamela Smart, and Erik and Lyle Menendez. My analysis draws on the language and affective displays that unfolded in the trials to demonstrate how the grief-guilt complex enters into the courtroom. It also highlights the ways in which media coverage preceding and surrounding the trials helped breed heightened suspicion around each of the defendants in ways that hampered their ability to fully access their Sixth Amendment rights to a fair trial unimpeded by prejudicial biases about grief performance and guilt.

In 2016, Colten Boushie, a 22-year-old Indigenous man, was fatally shot by Gerald Stanley, a white farmer. Stanley was later acquitted of second-degree murder and manslaughter by an all-white jury. Peremptory challenges became the major legal focus, with the all-white jury attributed to the defense attorney’s peremptory dismissal of five Indigenous individuals from the final jury panel. Following a raucous public debate, just two months after Stanley’s acquittal, Canada’s Government quickly introduced Bill C-75, eliminating peremptory challenges. While some legal actors view the ban on peremptory challenges as a step toward improving Indigenous juror participation, others argue that this elimination decreases Indigenous representation. As the insular debate endures, it continues to distract from numerous substantial issues with more profound implications on Indigenous juror representation. Through an analysis of the Jury Acts of Ontario, Saskatchewan, and Manitoba, this Article highlights how provincial jury pool selection and summoning policies continue to encourage Indigenous exclusion. For more representative juries, Canada must move past peremptory challenges and acknowledge that sustained efforts made in partnership with Indigenous communities are desperately needed. Examples are offered of structurally-oriented, deeper reform actions to begin the process of addressing root causes of white-washed criminal juries in Canada.

Following this year’s symposium theme of restorative justice, the UCLA Criminal Justice Law Review is proud to feature works highlighting restorative justice in action. The following pieces come from the Success Stories Program, a restorative justice program borne out California state prisons.

In November 2021, the UCLA Criminal Justice Law Review, in partnership with the UCLA Law Criminal Justice Program and several cosponsors, presented the symposium series Restorative Justice Origins, Applications, & Futures. The focus of the series was restorative justice, a concept derived from diverse indigenous community traditions around the world that include peacemaking, talking circles, and community healing. Remaining cognizant of these roots is essential to practicing restorative justice in good-faith. Today, restorative justice focuses upon healing relationships, both between community members and within individuals.

A number of peacemaking principles and practical skills and fall under the restorative justice umbrella. For example, practical skills include nonviolent communication, active listening, and understanding our own approaches to dealing with conflict. Among peacemaking principles, there is the importance providing time and space for healing, joint responsibility for one another, and identifying harmful actions’ impacts and communal remedies. Restorative justice has also been referred to as a social movement, particularly in light of recent racial violence and the calls to defund the police. While we don’t claim that restorative justice has all the answers to problems in criminal justice, it is a unique, genuine, and ongoing effort to find communal solutions to these problems. We hope this can be the first step of many in discussing restorative justice in law school and beyond.