Offer Of Proof

The Online Criminal Companion to the New England Law Review

Faculty Blog: $2 Roadside Field Tests: Where was the Defense?

By: Professor Tigran W. Eldred

Readers may have seen the startling front-page article in last Sunday’s New York Times magazine, which described how hundreds (and probably many more) of people are found guilty every year for possessing illegal drugs based on faulty field tests––chemical tests that can quickly, but often erroneously, determine whether narcotics is present. Entitled “How a $2 Roadside Drug Test Sends Innocent People to Jail,” it chronicles the story of Amy Albritton, a mother of two who was arrested in Texas when police officers found a “white crumb” on the floor of her car that tested positive in a roadside field test for cocaine. Processed through the Houston criminal court system, she was presented with her options by her appointed lawyer: plead guilty and receive a sentence of 45 days in jail or risk trial and the possibility of a two-year jail sentence. As happens for so many other people across the nation faced with a similar dilemma, she chose to plead guilty despite her claim of innocence. Years later, Ms. Albritton learned that the white crumb had been re-tested by a more reliable laboratory test and found to contain nothing illegal––yet by then Ms. Albritton, like so many others convicted of low-level offenses, had lost her job, her home, her belongings, and suffered years of ignominy because of the false conviction.

The authors of the New York Times article do an excellent job of describing how narcotics field tests can produce false positives, noting how these tests are a much less reliable measure of whether a substance is illegal than more sophisticated laboratory testing. Yet, because many people charged with a crime are required to decide whether to plead guilty before laboratory tests are conducted, too many defendants are charged and convicted without the more reliable testing taking place. The result: defendants such as Ms. Albritton are falsely convicted based on a test never meant to be the final barometer of guilt.

The bulwark against the type of injustice that befell Ms. Albritton is supposed to be the vigorous advocacy by a defense lawyer whose job is to ensure that a proper investigation of the facts occurs before a defendant pleads guilty. Yet, we know that too often defense lawyers across the country, burdened by excessive caseloads and inadequate funding and resources, recommend plea deals without engaging in any meaningful investigation of the facts or law. Apparently, Ms. Albritton’s lawyer fit into this mold: according the New York Times, after learning that the field test had tested positive, her lawyer was “unswayed” by her protestations of innocence — even though the white crumb had not been re-tested by a drug lab by that point. From there, the recommendation that she take the plea deal became pro forma. As her lawyer rhetorically stated when asked by the Times reporters, “The entire country works on these field-test kits, right?”

It is easy to conclude that lawyers such as Ms. Albritton’s appointed counsel should have sought a confirmatory lab test before allowing her to plead guilty, and certainly there is good reason for such a conclusion. But the harder question is why do defense lawyers every day across the nation allow their clients to plead guilty without engaging in the type of factual investigation required by professional standards? Is it because too many defense lawyers are lazy? Are they simply overwhelmed by the number of cases they need to process? Or is it something else?

Scientific evidence suggests another reason: as I have written elsewhere, a large body of empirical research suggests that defense lawyers for indigent clients are susceptible to what I call (provocatively, to be sure) “Ethical Blindness.” Simply put, too many lawyers, starting with the premise that their clients are guilty, are lulled by their cognitive biases into believing that quick plea bargains are in the best interest of the clients, despite their ethical obligations to act vigorously to investigate a client’s legal or factual innocence. The behavioral science supporting these conclusions is quite revealing and includes factors such as confirmation bias, motivated reasoning, and cognitive dissonance, to name a few (I explain these and other factors in more detail in my article and in this discussion with the Sixth Amendment Center).

If defense lawyers are to play their essential role in the administration of justice, then lamenting the circumstances that produce subpar performance is not enough. Rather, the psychological factors that can blind lawyers to their own professional obligations must be addressed. For Ms. Albritton and many others in similar situations, justice demands nothing less.

The Journal and the Law Review Have Merged!

The spring of 2016 has certainly been a busy time of year for New England Law | Boston’s publications. After a season of changes, we are very pleased to announce that the Journal on Criminal and Civil Confinement and the New England Law Review have officially merged into one publication. Because the Journal focused on a niche area of the law, we have chosen to continue many of the wonderful things that the Journal offered. One symposia each year will remain focused on topics typically reserved for the Journal, including criminal and civil confinement, criminal law, and criminal procedure.

Many changes are coming to Offer of Proof as well. Our online publication will now begin to feature original content from both professional articles and our own student members. These articles will be focused on topics relating to the field of criminal law and procedure.

We are very excited to see these new changes implemented and are very proud of our members for continuing to produce excellent work.

–Leah Barrett,
Executive Online Editor, Offer of Proof

Announcing Volume 42 Issue 2

We are very pleased to announce the release of Volume 42, Issue 2. This issue includes an article by Professor Juliet Stumpf  exploring how the right to counsel may extend into immigration proceedings. This issue also includes an article by  Professor Christopher Lasch on the rise of so-called “Sanctuary Cities” and how their existence has become a larger political issue.

Volume 42, Issue 2 also includes the scholarship of our own editors, Tanya LarrabeeAna Moretto, and Aisling E. Steele.

Announcing Volume 42, Issue 1

We are pleased to announce the release of Volume 42, Issue 1. This issue includes an article by professional practitioner George Bach on the meaning of dignity in the context of conditions of confinement claims. Professor John H. Blume contributed an article exploring the idea that the focus on individual ethics in criminal trials robs the defense bar of the ability to collectively refuse to plead guilty.

The Director of American Civil Liberties Union of Massachusetts’ Racial Justice Program, Attorney Rahsaan Hall, was interviewed about the responsibility of legal advocates to be intentional about their understanding of race. Professor David Siegel and founding member of the New England Innocence Project was interviewed about local criminal reform efforts, particularly those regarding forensic science.

Volume 42, Issue 1 also includes the scholarship of our own Editors Ana Moretto, Edward P. Sisk, Kelsey Joy Smith, and Aisling E. Steele.

Save the Date!

Solitary Confinement

Spring 2016 Symposium

Thursday, March 24 from 4-6 pm in the Moot Courtroom

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Sentencing Reform: Are Mandatory Minimum Sentences on the Decline?

By Meghan R. Olsowski

On October 1, 2015, U.S. senators from both parties joined forces to create a new bill titled, “The Sentencing Reform and Corrections Act of 2015.” The main purpose of the bill is to further the sentencing reform initiative by decreasing mandatory minimum sentences for nonviolent drug crimes. Many believe that this bill is the most groundbreaking bill in sentencing reform since the War on Drugs began in the late 1980s and early 1990s.

In addition to addressing mandatory minimum sentences, the bill also notably addresses “three strikes” laws, reducing the penalty from life imprisonment to twenty-five years imprisonment. It prohibits solitary confinement for juvenile offenders. It implements many “good time” programs and rehabilitation practices within prisons, which can be used to shorten non-violent offenders’ time in prison. However, the most monumental part of the bill lies within its retroactive quality. Many offenders serving time under the original mandatory minimum sentences will be able to have years taken off their sentences.

While the bill attempts to eliminate many mandatory minimum sentences for non-violent offenses, it created or increased mandatory minimum sentences to a few offenses. The bill creates mandatory minimum sentences for two groups: (1) interstate domestic violence crimes that lead to death; and (2) individuals who provide support to terrorist organizations. And the bill increases the mandatory minimum sentence to fifteen years for felons who are caught unlawfully possessing a firearm.

This bill is only applicable to federals crimes and prisons, so it will not affect people who are housed in jails and state facilities. Many individuals and groups, including Families Against Mandatory Minimums, feel as though this bill is a strong move towards positive change, but it is still not enough to affect the root of the real issue: eliminating mandatory minimum sentences altogether. While this bill may potentially do wonders for nonviolent offenders, there is still serious concern regarding how our country plans to provide sentencing and confinement reform to violent offenders. Fordham Law School Professor John Pfaff stated, “Prison populations will not drop significantly until we start asking how we can punish violet offenders more intelligently and less severely.” In order to discover answers for our ailing sentencing and confinement system, we must look at offenders on both ends of the spectrum.

On October 22, 2015, the Senate Judiciary Committee voted to move the bill to the floor for a vote. It needs to be passed by the Senate, passed by the House, and signed by the President in order to become effective. Until then, we’re left wondering whether this potentially monumental bill will successfully implement some of the most powerful policy changes in criminal justice reform history.

The entire bill may be found here.


For a more thorough reading of the issue see:

Adam Bates, The Sentencing Reform and Corrections Act is a Compromise, but a Pretty Good One, Cato Institute (Oct. 6, 2015, 1:32PM),

Carrie Johnson, Here’s One Thing Washington Agreed On This Week: Sentencing Reform, NPR (Oct. 3, 2015, 11:01PM),


Here are select articles from our publication that address sentencing reform:

Kimberly L. Patch, The Sentencing Reform Act: Reconsidering Rehabilitation as a Critical Consideration in Sentencing, 39 New Eng. J. on Crim. & Civ. Confinement 165 (2013).

Brian J. Foley, Reframing the Debate Over Excessive Sentences to Move Beyond the Eighth Amendment, 38 New Eng. J. on Crim. & Civ. Confinement 3 (2012).

Mary Price, Everything Old is New Again: Fixing Sentencing by Going Back to First Principles, 36 New Eng. J. on Crim. & Civ. Confinement 75 (2010).


Familiar Childhood Snack Lands CEO in Jail

By Brittney A. Millay

On average, a child will eat approximately 1,500 peanut butter and jelly sandwiches before he or she graduates from high school. That is almost ninety-four pounds of peanut butter per child. In 2008, a peanut butter distributor in Albany, Georgia caused one of the worst Salmonella outbreaks to hit the US.

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Glossip v. Gross

By Stephanie A. Mealey

The Supreme Court of the United States recently denied a rehearing on its decision in the case of Richard Glossip v. Kevin Gross (135 S.Ct. 2726 (2015)). This case was based on a claim brought by three death row inmates in Oklahoma alleging that the combination of drugs that the state uses in its lethal injection protocol violates a person’s constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. The inmates claimed that the first drug used in the state’s three-drug protocol, the sedative midazolam, does not induce a state of deep unconsciousness as intended. This allows the inmate being executed to feel excruciating pain when the second and third drugs are administered. The executions of Clayton Lockett, Dennis McGuire, and Joseph Wood last year were highly publicized because the inmates were in agony. The excruciating death was allegedly due to the inefficacy of the drug midazolam as a sedative.

In a 5-4 opinion, the majority of the Supreme Court held that Oklahoma’s use of midazolam does not violate the Eighth Amendment as cruel and unusual punishment. The majority opinion, written by Justice Alito, offered two reasons for its holding: first, “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims;” and second, “the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”

The Court went on to explain that under the Supreme Court case of Baze v. Rees, 553 U.S. 35, 61 (2008), it is settled that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative method to execution. However, in her dissent, Justice Sotomayor questioned this reasoning, stating, “[C]ertainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.” She urged that the Court’s decision is unfounded and that Baze adopted no such requirement that the petitioner must offer and prove an alternative method. Justice Sotomayor further argued that the Court disregarded substantial evidence of the drug’s deficiencies and merely deferred to the District Court’s decision to “credit the scientifically unsupported and implausible testimony by a single expert witness.”

The Glossip decision raised controversial questions and passionate dissents regarding the constitutionality of the death penalty as well as the methods used to execute those prisoners placed on ‘death row.’ In the aftermath of this decision, having been denied a stay by the U.S. Supreme Court, Richard Glossip was scheduled for execution on September 30, 2015. However, on September 30, 2015, the Governor of Oklahoma, Mary Fallin, issued Glossip a last-minute stay of execution due to a mix-up with the execution drugs. One of the drugs in the three-drug protocol was potassium chloride, but correction officers received the drug potassium acetate instead. Thus, the Governor issued a 37-day stay in order to ensure that the state fully complies with the federal protocol for lethal injection drugs.

Glossip’s new execution date was scheduled for November 6, 2015. On October 1, 2015, Oklahoma Attorney General Scott Pruitt requested an indefinite stay of Glossip’s execution as well as for the two other executions, which were scheduled to take place in Oklahoma in November. Pruitt reasoned that his office wanted to investigate the Oklahoma Department of Correction’s purchasing of a drug that did not comply with protocol. The request for an indefinite stay was granted on October 2, 2015. A new execution date will likely not be set for at least a year until state and federal investigations into Oklahoma’s death penalty are concluded.

The full opinion is available here.


Here are select articles from our publication that address lethal injections:

Roderick C. Patrick, Hiding Death, 18 New Eng. J. on Crim. & Civ. Confinement 117 (1992).

Julie Levinsohn Milner, Dignity or Death Row: Are Death Row Rights to Die Diminished? A Comparison of the Right to Die for the Terminally Ill and the Terminally Sentenced?, 24 New Eng. J. on Crim. & Civ. Confinement 279 (1998).

Padilla v. Kentucky: The Foundation of Crimmigration

By Daniel F. O’Shea

Following the United States Supreme Court’s decision in Padilla v. Kentucky (559 U.S. 356 (2010)), criminal defense attorneys must now consider the immigration consequences of a criminal conviction, and must inform their clients of those consequences before entering a plea. Deportation is a unique and particularly severe penalty, and in certain circumstances, avoiding deportation may be more important than averting an incarceration’s maximum sentence.

Padilla was a postconviction proceeding brought by Jose Padilla, a veteran and a lawful permanent resident of the United States for over 40 years. Mr. Padilla was incorrectly advised by his attorney that he “did not have to worry about immigration status since he had been in the country so long.” Relying on this advice, Mr. Padilla pled guilty to the transportation of marijuana, essentially making his deportation mandatory. Mr. Padilla claimed that had he received accurate advice from his attorney, he would not have pled guilty and would have gone to trial.

The Supreme Court granted certiorari to determine if Mr. Padilla’s counsel had an obligation to advise Mr. Padilla that a guilty plea would result in removal proceedings. The Court held that deportation is an integral part of the penalty for noncitizens accused of specific crimes and intimately related to the criminal process. Therefore, advice regarding deportation falls within the ambit of the Sixth Amendment right to effective assistance from competent counsel.

Although Mr. Padilla’s “counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute,” the Court acknowledged that immigration law can be complex. When the law is not very straight forward, a criminal defense attorney need only “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” When the statute is clear, as in this case, a criminal defense attorney has a “duty to advise the client that that he [or she] will be subject to deportation as a result of the plea.”

Padilla helped set the foundation for Crimmigration and how defense counsel must be aware of immigration consequences for their noncitizen clients. The full opinion is available here:

Please join us for our Fall Symposium on November 5, 2015 from 4:00 to 6:00 pm to learn more about this interesting cross section of criminal and immigration law. We have a diverse panel that will discuss Crimmigration and the impact that it can have on practicing attorneys. Please click here for more information.

What is Crimmigration?

By Carly C. McClain

“Crimmigration” is the intersection of criminal law and immigration law. This term was coined in 2006 by Attorney Juliet Stumpf and is quickly becoming part of the national criminal and immigration law lexicon. However, the practice of criminalizing the activities of certain immigrant groups has been in practice for far longer than the term has been in use. Prior to the Supreme Court’s decision Padilla v. Kentucky (559 U.S. 356 (2010)), when a foreign national defendant found himself or herself in a criminal court, a defense attorney was not mandated to explain the immigration consequences of a criminal conviction to him or her. Immigration consequences, including deportation, had previously been treated by the courts, the government, and defense attorneys as collateral consequences of criminal convictions, akin to losing housing subsidies or becoming ineligible to obtain federal student loans. In Padilla, the Supreme Court held that the immigration consequences for a foreign national defendant that arose from his conviction were not collateral, but an integral part of the punishment proscribed by the court. The Court held that defense counsel’s failure to advise a client of the immigration consequences of pleading guilty can be ineffective. In certain circumstances, the client’s criminal conviction could even be overturned, on grounds now known as a Padilla motion. It is important for clients and practitioners alike to understand that certain criminal offenses trigger deportation and that a client has a constitutional right to make an informed decision regarding a plea deal.

In response to Padilla’s mandate, and to prepare future practitioners to better serve foreign national defendants, law schools across the country are offering courses in Crimmigration, including New England Law | Boston, Harvard Law School, Strum College of Law at the University of Denver, and UC Berkeley School of Law. There are websites devoted entirely to Crimmigration, with attorneys regularly posting best practices and recent state and federal court decisions. Law schools and bar associations are organizing symposia and other events on Crimmigration, where practitioners and theorists explore the myriad of issues raised throughout the country due to state-by-state differences in the application of Padilla.

Our publication is hosting a symposium on Crimmigration on November 5, 2015 from 4 to 6 pm. This event is open to the public. Speakers will include Justice Robert J. Cordy, Attorney Aditi Goel, Professor Christopher LaschProfessor Halim Morris, Attorney James P. O’Shea, and Professor Juliet Stumpf. Professor Dina F. Haynes will moderate the event. Please click here for more information.

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