UCLA Criminal Justice Law Review

In this article, I take a sociological approach to the constitutional questions intrinsic to the pretrial incarceration of the unconvicted, focusing on the group of people whose pretrial detentions most directly complicate the Court’s decisions: those people who are detained pretrial and then never convicted of the crimes for which they were held. Notably, despite the ways in which the experiences of these never-convicted people call into question case law regarding individuals receiving the presumption of innocence and due process protections against punishment before trial, this group is absent from contemporary criminological and sociological studies. I begin this article with a brief review of the key Supreme Court cases on the constitutionality of pretrial detention. I then provide an overview of current social science research on pretrial detention and situate this research therein, before describing my data and methods. I then present my findings, along with a discussion.

This Article argues judicially-imposed rigid rules governing the conduct of those responsible for providing adequate healthcare to the incarcerated will not reform prison healthcare. This is largely because the “need to customize and adapt makes rules an ineffective means of controlling discretion.” Instead, judges and policymakers should supplant limited rules with principles of ongoing monitoring and correction of these facilities if they hope to improve these facilities’ provision ofhealthcare. Part I quickly describes the United States’ criminal legal system and the dire conditions inside American prisons, jails, and detention centers. Part II surveys class-action litigation challenging inhumane healthcare provisions in four jurisdictions, each one using a different healthcare delivery model. Part III examines how institutional systems and structures at these facilities may be improved by incorporating systems of ongoing monitoring and correction, in line with the principles used in the Alabama-Utah model of child welfare service provision. Finally, Part IV offers a brief conclusion and notes possible implications for correctional facilities across the country.

Framing and discursive strategies influence the direction of oral arguments and, ultimately, case outcomes, and these strategies benefitdominant interests and sideline marginalized voices. This paper critically evaluates the oral arguments in the 1972 Supreme Court, Argersinger v. Hamlin, decision holding (for the first time) that some misdemeanor defendants were entitled to counsel. The case was argued twice (1971and 1972) and decided under tremendous uncertainty about its effect, including (1) how many misdemeanor defendants would be affected by the ruling, (2) how lawyers might be recruited for representation, and(3) what kind of impact mandated representation might have on small, rural communities. Drawing on critical discourse analysis, this paper investigates how lexicality and framing shifted questions and arguments that constructed social realities perpetuating and reproducing dominant interests while obscuring and backgrounding non-dominant interests on the scope of the right to counsel. The analysis shows that common legal framing strategies amplified the voices and concerns of the judges, lawyers, and systemic interests while undermining defendants’ interests, particularly in resolving factual uncertainties. Guidance in structuring contemporary arguments to avoid these inequities that result in the unintended marginalizing of constitutional rights is discussed.

Individuals openly toting high-powered firearms are descending upon America’s polling places, vote tabulation centers, and even the private residences of election officials. While states are free to banfire arms at election facilities, few have done so. Worse yet, statutes designed to prevent voter intimidation are ineffective, as they require prosecutors to prove intent to intimidate on the part of those who open carry. While that may seem obvious, putative defendants will contend they have no intent to intimidate anyone with their open display of firepower, and instead are merely seeking to “prevent voter fraud” or to defend themselves. Consequently, voter intimidation prosecutions are rarely brought.

This Article identifies an innovative strategy to combat intimidation by armed individuals at elections: the common law offense of riot. At common law, armed groups unauthorized by law were considered riots and punished as such for causing “public terror.” All but three states have either codified riot in their criminal codes or judicially adopted the common law offense. Although the statutory formulations of the crime vary, in many states, including those where there is a significant risk of election-related intimidation in upcoming elections, prosecutors could effectively deploy the law of riot against those who open carry at elections.

This Article canvasses the law of riot in the fifty states, provides a roadmap for prosecuting the offense under the various formulations of the law, and arms prosecutors with a much-needed weapon to disarm those who seek to intimidate voters and election officials.

This Article explores the application and enforcement of GVROs in California and offers an evaluation of their effectiveness thus far. It then argues that GVROs are constitutionally permissible under the new standard announced in New York State Rifle & Pistol Assn., Inc. v. Bruen. In Bruen, the U.S. Supreme Court held that a century-old New York gun safety law, which required a license to carry concealed weapons in public places, was unconstitutional. Further, the Court adopted a new test that says a modern gun law must have an analogue in American legislative text, history, and tradition.

This Article blends statutory and legal analyses of GVROs in California and includes a rare discussion of the practical and administrative aspects of how attorneys proceed in bringing forth a GVRO against a respondent. It stands apart from the extant legal literature which has largely addressed the goals and feasibility of red flag laws generally, or has focused on red flag laws in states other than California. Thus far, the analytical scope of the research surrounding GVROs has been defined and maintained by medical and public health academics within medical journals. These studies lean heavily towards case summaries, discussing study design and/or collecting statistics. This Article bridges their results with best legal practices and caselaw analyses to broaden the conversation about the need for GVROs.

The Bruen majority invalidated New York’s firearms licensing law on the basis of its supposed conflict with historical tradition, stating: “[t]he test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” The Court’s disparate standards for voting rights and the right to keep and bear arms enables legislatures to expand access to guns while constraining access to ballots. Second Amendment expansion and voting rights contraction will particularly harm minoritized Americans. Research shows that looser gun laws lead to more gun-related deaths, and gun homicide disproportionately kills Black, Hispanic/Latino, and Native Americans. Black, Hispanic/Latino, and Native people likewise bear the brunt of voter suppression laws. This means that the Supreme Court’s insistence on expanding the right to keep and bear arms, while shrinking the right to vote, conspires to silence Americans of color whether denying them ballots or subjecting them to bullets.

Part II of this paper discusses the ways in which structural barriers, such as discriminatory public/social policies, and physical barriers, such as armed violence, have kept minoritized Americans from participating in electoral politics. Part III of this paper argues that the Supreme Court’s diverging approaches to cases involving the Fifteenth Amendment, the Voting Rights Act, and the Second Amendment effectively uphold and reinforce structural barriers to democracy and enable armed political violence. Part IV discusses the implications of the Court’s treatment of firearms and voting in the context of heightened political tension, voter suppression, and Second Amendment extremism. Part V concludes with suggestions for how to course correct.

Part I of this Essay tells the origin story of the UCLA Law COVID Behind Bars Data Project. Part II addresses the question of how an effort like this, focused on data and policy, could have arisen in a law school, and what our experience reveals about the role the legal academy and legal scholarship can play in the movement for social justice and policy change. Part III highlights some of the organizational factors that enabled us to do what we did despite significant time and resource constraints. The focus here is on the process of institution-building and lessons learned. Finally, Part IV briefly describes the denouement of our COVID data collection efforts and our decision to pivot to our currentfocus on national, all-cause carceral mortality.

The passages below feature the most relevant and explanatory discussions that occurred during the Symposium sessions. The Symposium featured a keynote speaker address and five panels. The transcripts have been edited for length and clarity.