Past Issues

ByLindsay F. Wiley* and Samuel R. Bagenstos**Full Article.IntroductionOur nation’s response to the coronavirus pandemic has revealed fundamental flaws in our legal regimes governing both public health and employment. Public health orders have called on individuals to make sacrifices to protect society as a whole. Simple fairness dictates that the burdens should be shared as widely as the benefits. And the case for burden-sharing does not rest on fairness alone. Public health measures are more likely to succeed when those who are subject to them understand them as fair[1] and when their cooperation is supported.[2] Predictably, our pandemic response has placed disproportionate burdens on those who are already disadvantaged due to economic, racial, gender, disability, immigration, and criminal injustice.[3] Elected officials have asked each of us to take personal responsibility for…

By Jacob Abrahamian*Full Article.I. IntroductionIn January 2019, the National Collegiate Athletic Association (NCAA) found the University of Missouri guilty of academic misconduct and imposed severe penalties on its football, baseball, and softball programs.[1] A two-year investigation by the NCAA revealed that a tutor had completed academic coursework for twelve of Missouri’s student–athletes, including having completed an entire course for one student.[2] The penalties were harsh; the NCAA banned each program for one year, vacated records from when the twelve athletes participated, reduced scholarship money, restricted recruiting, and imposed fines, among other punishments.[3] After an appeal, the NCAA upheld its sanctions in full.[4] Fans of the Missouri Tigers were outraged by the decision, but not because they doubted that violations had occurred.[5] In fact, Missouri officials admitted to the misconduct.[6]Instead, the…

By Austin Moylan*Full Article.I. IntroductionThe United States is home to approximately 330 million people.[1] Strikingly, 2.3 million of them are behind bars.[2] For every 100,000 people in the United States, nearly 700 are in prison, an incarceration rate unmatched by any other country.[3] And despite having only 4% of the world’s population, the United States has an estimated one-third of the world’s prisoners serving life sentences.[4]The problems caused by mass incarceration are varied and significant. Annual spending on corrections at the state level alone totaled almost $57 billion in 2015.[5] And there appears to be little payoff either, as recidivism rates remain high; three quarters of those released from prison will be arrested within five years and over half will end up back in prison.[6] The lack of payoff is…

By Ben Shattuck* Full Article. “It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.”[1]   “Bivens is a relic of the heady days in which this Court assumed common‑law powers to create causes of action.”[2] Introduction On June 7, 2010, fifteen-year-old Sergio Adrián Hernández Güereca (Hernández) was playing with a group of friends in the cement culvert separating El Paso, Texas, and Ciudad Juarez, Chihuahua, Mexico.[3] The boys were allegedly playing a game in which they would run up the incline of the culvert and touch the barbed-wire fence separating the United States and Mexico and then run back into the culvert.[4] While the boys were playing, United States…

Sonja B. Starr* Full Article. Introduction In the past several years, dozens of states have adopted or expanded laws providing for expungement of some adult criminal convictions.[1] Several states have recently passed groundbreaking “Clean Slate” legislation, which makes expungement automatic for those who meet the legal requirements.[2] Arizona, currently, is one of the holdouts to this trend—it not only has no automatic expungement law but indeed does not even allow expungement by petition. Although Arizona has a procedure to “set aside” a conviction,[3] this procedure does not seal the record and does not give the individual the right to refuse to disclose it.[4] In this Article, I draw on my recent empirical research to argue that Arizona should join its sister states in offering a second chance to people with…

Cassia Spohn. The early 1970s witnessed calls for reductions in state and federal prison populations and predictions that the use of incarceration would decline. For example, in 1973 the National Advisory Commission on Criminal Justice Standards and Goals, which concluded that “[t]he prison, the reformatory, and the jail have achieved only a shocking record of failure,” recommended that “no new institutions for adults should be built and existing institutions for juveniles should be closed.” These calls for reductions in the use of incarceration, however, fell on deaf ears. Rather than declining, America’s imprisonment rate, which had fluctuated around a mean of 110 individuals per 100,000 population for most of the twentieth century, increased every year from 1975 to 2007. In fact, the state and federal prison population increased from 300,000…

John F. Pfaff* Full Article. Introduction Few institutions in our deeply flawed and troubled criminal justice system draw as much immediate ire as private prisons. In his 2016 campaign for the Democratic presidential nomination, for example, Senator Bernie Sanders’s first stab at a criminal justice reform platform was to sponsor a (surely unconstitutional) bill banning private prisons in the state and federal systems alike.[1] The 2020 campaign for the Democratic presidential nomination similarly saw multiple candidates make pledges about private prisons, while none gave any real attention to the specifics of publicly run institutions.[2] This persistent focus on private prisons by politicians and the public alike is misguided for at least two reasons. First, it significantly overstates the role that privatization plays in the U.S. prison system.[3] All told, only…

Ben A. McJunkin* Full Article. Introduction To be homeless in Arizona is to be a criminal. City ordinances across the state prohibit broad swaths of conduct that make merely existing in public spaces difficult for those who lack housing. As a result, Arizonans experiencing homelessness commit countless crimes every day out of necessity, including loitering in parks,[1] resting at bus stops,[2] obstructing sidewalks,[3] pitching tents,[4] asking for money,[5] asking for work,[6] and sleeping just about anywhere.[7] At the state level, Arizona law prohibits loitering, littering, and public nuisances, the last of which is frequently invoked to justify sweeping and dismantling homeless encampments.[8] As prohibitions on the homeless experience proliferate, so too does Arizona’s homeless population. The state has experienced consistent year-over-year increases in the number of individuals experiencing homelessness, many…