Arizona’s Sex Offender Laws: Recommendations for Reform

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Tamara Rice Lave* Full Article. Introduction In this Article, I consider ways in which Arizona’s laws regarding sex offenders should be reformed. I begin by focusing on laws that are designed to deal with the danger posed by convicted sex offenders: registration requirements, residence restrictions, and civil commitment. I contend that the state has overstated the risk posed by convicted sex offenders and that the laws meant to control them may do more harm than good. Next, I turn to police sexual violence. I argue that the state needs to go further in criminalizing this abhorrent conduct in order to promote the rule of law and protect vulnerable persons. I. Laws Designed To Control Convicted Sex Offenders I start this Part by considering the motive for laws controlling sex offenders:…
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Vulnerable and Valued: Protecting Youth from the Perils of Custodial Interrogation

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Kristin Henning* & Rebba Omer** Full Article. Introduction It had been four long days since the baby died and Lacresha Murray had last been allowed to see or talk to her grandparents, who adopted her when she was two.[1]Now she was sitting in a small room with an angry police officer looming over her, the gun at his waist directly at her eye level. She did not have much experience talking to police officers, but she had seen the police stop and search other Black people, and she had heard her grandparents tell her older sister that she should always do exactly what officers say. “Get home safe,” Lacresha remembered her grandparents telling her sister every time they talked about the police. Now, Lacresha did not know how she would…
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Advancing Bail and Pretrial Justice Reform in Arizona

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Henry F. Fradella** & Christine S. Scott-Hayward*** Full Article. I. Introduction In its 2017 “State of Pretrial Justice in America” report, the Pretrial Justice Institute (“PJI”) praised Arizona’s pretrial justice reform efforts.[1] Arizona was one of nine states awarded a “B” grade (only one state—New Jersey—received an “A” grade).[2] Arizona was also named a “state to watch.”[3] Other commentators and news outlets have highlighted Arizona’s efforts and argue that it is one of the jurisdictions at the forefront of bail reform.[4] Although we agree that Arizona has taken some key steps toward creating a just and effective bail system,[5] more needs to be done before the state becomes a true leader in pretrial justice. Arizona remains a state with high numbers of unconvicted people in its jails.[6] Of the approximately…
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Raising Arizona’s Commitment to Health and Safety: The Need for Independent Oversight of Arizona’s Prison System

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Michele Deitch* Full Article. Introduction Over the last decade or so, Arizona’s prisons have become synonymous with mismanagement, lack of safety, unconstitutional health care, and abysmal conditions for people in custody. The problems that have marred the corrections agency’s reputation have been documented in countless news stories and show the agency’s seeming inability to address even the most fundamental flaws in its operations that lead to violence and deaths in custody.[1] A litany of scandals, including broken locks on cell doors, abuses of incarcerated people, riots, escapes, horrific care of pregnant women, and water shortages have also dominated news headlines.[2] Moreover, a federal class-action lawsuit about Arizona’s disastrous privatized prison health care delivery system has spanned many years; it led to a detailed settlement and also to a civil contempt…
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Safety, Crisis, and Criminal Law

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Jenny E. Carroll* Full Article. Introduction Concepts of safety and prevention of danger pervade the criminal law canon.[1] Arizona is no exception.[2] The state’s criminal systems[3] pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.[4] The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous”[5] and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.[6] On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of…
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Ensuring Marijuana Reform Is Effective Criminal Justice Reform

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Douglas A. Berman* and Alex Kreit** Full Article. Introduction In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable. The idea was viewed as so far outside the mainstream in 2009 that President Barack Obama’s first drug czar Gil Kerlikowske dismissively told a reporter that “[l]egalization [was] not in the President’s vocabulary.”[1] When California voters rejected the first major state-wide marijuana legalization ballot initiative in November 2010, the Obama administration celebrated the result.[2] Fast forward just six years, and voters in eight states had approved full adult-use legalization laws and Obama was telling Rolling Stone that he thought marijuana should be treated “as a public-health issue, the same way we do with cigarettes or alcohol.”[3] Today, marijuana legalization enjoys broad bipartisan support. Sixty-seven percent of Americans…
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Forensic Evidence in Arizona: Reforms for Victims and Defendants

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Valena E. Beety* Full Article. Introduction Arizona is nationally recognized as a leader in forensic science. Our state court judges serve on the Legal Resource Committee for the National Institute of Science and Technology (NIST) and provide guidance to NIST’s Organization of Scientific Area Committees for Forensic Science.[1] Our Phoenix lab analysts and lab directors have national reputations.[2] And Arizona State University’s Sandra Day O’Connor College of Law has been home to many leading academics in the field of forensics and the law, among them Michael Saks, David Kaye, and Jay Koehler.[3] We have a robust forensic science community in Arizona and in Phoenix in particular. Thus, this Article identifies the strengths of the current system in Arizona and proposes innovative reforms appropriate for labs that are already leaders in…
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Improving Criminal Justice Decisions

2020, Past Issues, Print, Volume 52 (2020) Issue 3 (Fall)
Michael Serota* Full Article. All government decisions matter. But few matter more—or are more consequential for society—than those involving the criminal justice system.[1] That’s because we depend upon the criminal justice system to perform two of the government’s most critical functions: securing justice and promoting public safety. To achieve these goals, we afford those who operate the criminal justice system great authority: the power to investigate and monitor, to arrest and detain, to convict and punish. But with this delegation of power comes great vulnerability: we must trust that the government officials who make criminal justice decisions will exercise their authority responsibly, in a manner that respects individual rights, preserves communities, avoids undue delay, and conserves limited societal resources. Today, there is an emerging societal consensus that the U.S. criminal…
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Lessons from Disaster: Assessing the COVID-19 Response in Youth Jails & Prisons*

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Madalyn K. Wasilczuk** Full Article. I.    COVID-19 in Youth Jails and Prisons A. The Spread of COVID-19 in Youth Facilities B. Responses to COVID-19 in the Juvenile Legal System C. Race and Disability Disparities in Youth Facilities During COVID-19 II.  COVID-19 as a Disaster III. Assessing the Pandemic Response In Youth Jails & Prisons A. Confined Children’s Vulnerability to the COVID Disaster B. Applying Lessons from Disaster to Children’s Conditions of Confinement Introduction The COVID-19 pandemic has laid bare many of the cruel and inhumane conditions that persist in U.S. jails and prisons.[1] Headlines have highlighted the lack of access to adequate cleaning supplies and personal hygiene materials, restrictions on hand sanitizer, under-resourced medical facilities, and the costliness of phone calls and video visits for people in custody.[2] Jails,…
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Pandemic as Opportunity for Competence Restoration Decarceration*

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Susan A. McMahon** Full Article.  People are dying. We urge immediate action by the Court.[1] I.     Introduction II.  Competence Restoration Purgatory III. Impact of COVID-19 A. Pandemic as Crisis B. Pandemic as Solution IV. Next Steps and Dangers A. Deinstitutionalization Redux B. Retrenchment V.  Conclusion   I. Introduction Before the pandemic, a defendant found incompetent to stand trial was often stranded in jail for weeks or months as she waited for an inpatient bed to open at a psychiatric facility.[2] While there, she usually received no treatment, her mental health deteriorated, and she was astonishingly likely to be abused and neglected.[3] She almost certainly came out of jail in a worse state than she was when she went in. The pandemic has made this desperate situation even worse.…
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