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Parental Kidnapping And Domestic Violence: The Need To Reform And Enforce State Action, Anna Ratterman

Georgia Criminal Law Review

When civil family issues intersect with criminal acts, the civil and criminal systems fail to effectuate a complete remedy. Specifically, there are few effective protections for victims of domestic violence during the pendency of domestic relations proceedings. Given the complicated gender dynamics and inequalities that have developed throughout history, it is unsurprising that the criminal and civil systems have failed to prioritize prosecution of crimes against women. Current criminal laws fail to treat domestic violence and parental kidnapping as serious crimes and instead adopt the view that domestic disputes are private issues to be handled within the family. In turn, …

Paying For Prison: Equal Protection Remedies For The United States' Wealth Discrimination Problem, Alexandra Smolyar

Georgia Criminal Law Review

The American dream promises wealth, mobility, and security, yet daily millions of Americans live in abject poverty. What’s more, state and local policies render low-income people uniquely vulnerable to criminalization, further lessening their ability to attain this purported American dream. These effects are not incidental. Rather, they reflect a complexly interwoven system of wealth-based discrimination oftentimes promulgated and perpetuated by government actors. Yet, most constitutional anti-discrimination measures do not reach wealth-based discrimination despite the horrific everyday effects felt by low-income communities nationwide. The criminalization of poverty compounds these problems to create a never-ending cycle of discrimination and collateral consequences whose …

Burning The Candle At Both Ends: A Case For The Right To Counsel At The State Habeas Level, Sierra Stanfield

Georgia Criminal Law Review

Shinn v. Ramirez is the latest in a line of court decisions that place debilitating restrictions on the habeas corpus process, making it more difficult than ever for ineffective assistance of counsel claimants to prevail on a federal habeas claim. Paired with the growing restrictions placed on the criminal appellate process, both by the states and by the Supreme Court, these decisions make it near-impossible for many criminal defendants to challenge their convictions and guarantee their rights.

The decision not to guarantee counsel at the state habeas level is grounded in logic that predated these restrictions. The state habeas hearing …

"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac

Georgia Criminal Law Review

The outcomes of criminal cases can turn on the credibility of the parties’ expert witnesses. The compensation such experts receive in exchange for their work on cases can undermine their credibility, as it provides the experts with a financial incentive that might bias them in favor of the parties who retain them. While concerns with such bias have existed for decades, courts have been inconsistent in the defining the permissible scope of cross-examination and argument on the issue. Some courts have unduly curtailed such cross-examination and argument. Courts have also been inconsistent in their views of whether calling such expert …

“[T]Here Appears To Be Intentional Discrimination In The Panel”: The Case For Abolishing Peremptory Challenges In Georgia, Ariane Williams

Georgia Criminal Law Review

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court attempted to prevent peremptory strikes motivated by race. However, evidence and jurisprudence since Batson have indicated that the Court did not succeed. Furthermore, peremptory strikes perpetuate racial imbalance in juries and erode public faith in an unbiased legal system, as seen in reactions to the recent McMichael-Bryant trial in Georgia, in which only one black juror was seated. Given the longstanding and intractable issues with peremptory challenges, the Arizona Supreme Court decided to eliminate them entirely in 2021. This Article argues that Georgia should follow suit and abolish …

The Death Dignity Demands: The Eighth Amendment Requires Incarcerated People Decide Their Method Of Execution, Kali A. Haney

Georgia Criminal Law Review

Recently, there have been a number of incarcerated people on death-row challenging their method of execution and proposing an alternative: usually, firing squad. Courts are hesitant to grant this request for a number of reasons, including the rare use of the firing squad. But there is substantial evidence this method is the most humane. Additionally, it appears incarcerated people think so, which is why so many in recent years chose—or petitioned for—death by firing squad rather than lethal injection or electrocution. As pharmaceutical companies halt their drugs’ distribution to prisons, prisons are forced to come up with their own—often more …

The Use Of Oral Fluid Samples To Test For Driving Under The Influence Of Marijuana, Ian Wise

Georgia Criminal Law Review

Driving Under the Influence of Drugs (DUID) cases pose unique challenges to the criminal justice system. An evidentiary chemical test is a vital piece of evidence in a DUID prosecution because unlike alcohol, drugs do not cause impairment in a uniform fashion. Breath tests cannot detect drugs, and the intrusiveness of blood and urine tests has been the focus of Court cases over the past half-century with decisions in Missouri v. McNeely and Birchfield v. North Dakota curtailing the government’s ability to obtain this evidence without a warrant.

The need for a less intrusive alternative is driven by the doubling …

Protecting Our Nation’S Children In The Technological Age: Arguing For An Interpretation Of “Sexual Activity” In 18 U.S.C. § 2422(B) That Does Not Require Physical Contact, Allison Fine

Georgia Criminal Law Review

Our Nation’s justice system values “equal protection under the law.” This represents the belief that all individuals should be treated equally under the law regardless of personal characteristics. Traditionally, we think about this in a context of things like race, gender, or ethnicity. However, this also encompasses the general idea that individuals nationwide should be accountable to and protected by the same laws. As it relates to criminal law, this notion highlights the importance of uniformity in a criminal justice system. Without consistent application and execution, a criminal justice system will never be fair or “equal.”

The federal child enticement …

Long History Of Leniency? A Call For A Georgia Statutory Mitigation Factor For Veterans With Post-Traumatic Stress Disorder, Jonathan Fagundes

Georgia Law Review

In Georgia, criminal sentencing marks a critical period for convicted defendants. As the final moment before the superior court fashions a punishment, the defendant faces a pivotal opportunity to introduce mitigating evidence, including evidence of mental health challenges, life circumstances, and other facts. Where such evidence is offered, the superior court can properly issue a sentence that aligns with the purposes of punishment or other state policies. But some populations, especially veterans convicted of nonviolent offenses, are exposed to unique stressors that likely affect their culpability. The existing sentencing regime, however, does not guarantee that this mitigating evidence will even …

Punitive Instead Of Rehabilitative: The Role Of Restitution In The Juvenile Justice System And The Need For Reconstruction, Sydney Ford

Georgia Criminal Law Review

The juvenile justice system was founded on the premise of giving specific attention to the needs of youth and rehabilitating them. Over the years, the juvenile justice system evolved to include more rights and protections for youth while still maintaining that their goal was to rehabilitate justice-involved youth. Restitution, one method of disposition, began as a way to continue this rehabilitation-based mission and provide an alternative to incarceration. However, rehabilitation’s disproportionate and punitive application, with a lack of consistency across state lines, does not coincide with rehabilitation anymore. This article argues that restitution does not align with rehabilitation, the core …

Legalize For Legal Highs: How Georgia Can Address Racial Disparities In The Criminal Legal System By Legalizing Recreational Cannabis, Nneka Ewulonu

Georgia Criminal Law Review

Cannabis prohibition is a policy failure that nevertheless continues to impact more than half of Americans, including Georgians. Remaining true to its roots in racism and xenophobia, cannabis criminalization has disparate impacts, with Black Americans being more likely to be arrested or incarcerated for a cannabis related offense. Furthermore, cannabis criminalization results in tens of millions of missed tax dollars for the state. This article argues for a clear policy solution; it is time for Georgia to legalize cannabis. As demonstrated by the 21 states that have legalized recreational cannabis as of Fall 2022, legalizing recreational cannabis creates both economic …

Progressive Prosecution, Sherry Boston, Rachel Foran, Deborah Gonzalez

Georgia Criminal Law Review

No abstract provided.

Juvenile Sentencing In Georgia, Randee Waldman, Emily Boness, Kaitlyn Barnes, Aakeem Woodard

Georgia Criminal Law Review

No abstract provided.

Carl Vinson Institute Presentation, Holly Lynde

Georgia Criminal Law Review

No abstract provided.

Event Overview, Georgia Criminal Law Review Editors

Georgia Criminal Law Review

No abstract provided.

Table Of Contents, Georgia Criminal Law Review Editors

Georgia Criminal Law Review

No abstract provided.

Unacceptable Risk: The Failure Of Georgia’S “Guilty But Intellectually Disabled” Statute And A Call For Change, Logan Purvis

Georgia Law Review

In 1988, Georgia became the first state in the nation to prohibit the execution of intellectually disabled criminal defendants. At the time, this groundbreaking action played a critical role in shaping the national debate surrounding the criminal justice system’s treatment of this group of individuals, culminating in the United States Supreme Court’s own prohibition in 2002. A drafting error in Georgia’s statute, however, created a highly prejudicial process for determining intellectual disability, all but ensuring that the law’s protections are unattainable for those who seek it. Despite this error, Georgia’s process has remained the same since the statute’s enactment with …

Faithful Execution In The Fifty States, Zachary S. Price

Georgia Law Review

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed …

You’Re Out!: Three Strikes Against The Plra’S Three Strikes Rule, Kasey Clark

Georgia Law Review

As federal court caseloads increased in the twentieth century, concerned jurists and academics pointed their fingers at many potential culprits. One culprit in particular, however, caught the attention of Congress: suits brought by prisoners. To curtail what it believed was an influx of frivolous prisoner litigation, Congress passed the Prison Litigation Reform Act (PLRA) in 1996. One provision of the PLRA, known as the “three strikes rule,” prohibits a prisoner from proceeding in forma pauperis if three or more of the prisoner’s prior actions or appeals have been dismissed as frivolous or malicious or for failure to state a claim …

The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade

Scholarly Works

This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …

A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann

Scholarly Works

This essay appears as the Afterword (pp. 55-64) to a volume featuring an important work by the late Mireille Delmas-Marty (1941-2022) titled A Compass of Possibilities: Global Governance and Legal Humanism. A Collège de France de Paris law professor and one of the pre-eminent legal thinkers of her generation, Delmas-Marty and the essay’s author were longtime colleagues and collaborators. The volume contains an English translation of a 2011 lecture by Delmas-Marty, originally titled “Une boussole des possibles: Gouvernance mondiale et humanismes juridiques.” Amann’s essay surveys that writing, in a manner designed to acquaint non-francophone lawyers and academics with Delmas-Marty’s …

Lifting The Veil Of Mona Lisa: A Multifaceted Investigation Of The "Beyond A Reasonable Doubt" Standard, Zhuhao Wang, Eric Zhi

Georgia Journal of International & Comparative Law

For a long period of time, the golden standard in judicial fact-finding of criminal cases in the United States and many other countries has been the “Beyond a Reasonable Doubt” (BARD) standard – every person accused of a crime is presumed to be innocent unless, and until, his or her guilt is established beyond a reasonable doubt. The BARD standard’s undergirding principle is one of error distribution, where wrongful conviction of the innocent is a much greater wrong than failed conviction of the guilty. This concept was famously expressed by the English jurist William Blackstone in 1760s: “It is better …

Bargaining For Abolition, Zohra Ahmed

Scholarly Works

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms. First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic …

Complicated Mercy: Compensating The Wrongfully Convicted In Georgia, Elizabeth O'Roark

Georgia Law Review

An exoneree’s story does not end when they walk out of prison and back into society. After spending years in prison for a crime they did not commit, the exoneree must rebuild a life with years of lost income, little credit, and no retirement. Georgia is one of the few states that does not have a statute setting out how to fairly and efficiently compensate its exonerees. Exonerees must instead ask state representatives to present a resolution to the General Assembly. If the resolution passes through both chambers of the legislature, then the exoneree can receive some compensation for the …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Scholarly Works

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in society at large. This article offers a modest corrective to this tendency. By studying the Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to how the Court …

Modern Sentencing Mitigation, John B. Meixner Jr.

Scholarly Works

Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …

Suspicionless Policing, Julian A. Cook

Scholarly Works

The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …

Transfer Of Child Offenders To Adult Criminal Courts In The Usa: An Unnecessary Exercise, Unconstitutional Practice, International Law Violation, Or All Of The Above?, Roger-Claude Liwanga, Patrick Ibe

Georgia Journal of International & Comparative Law

There is an ongoing debate over the legality and effectiveness of the use of judicial waiver as a tool to fight violent crimes, including those committed by children in the United States. Judicial waiver or transfer of juveniles is a process by which child offenders are transferred from the juvenile court to adult criminal courts to be tried and sentenced as adult offenders. Despite the implicit recognition of the constitutionality of this practice by the United States Supreme Court, this paper contends that the transfer of child offenders to adult criminal courts violates key provisions of the Convention on the …

Sacrificing Secrecy, Daniel S. Harawa

Georgia Law Review

Juries have deliberated in secret since medieval times. The
historical reason for the secrecy is that it promotes impartiality,
which in turn protects a defendant’s right to a fair trial. But as
it turns out, jurors are not always impartial. Lurid examples
exist of jurors condemning defendants based on the defendant’s
race, sexuality, ethnicity, and religion.
Generally speaking, courts cannot hear evidence of what
transpired during deliberations. In 2017, however, the U.S.
Supreme Court created an exception to this rule, holding that
the Sixth Amendment requires courts to hear evidence of jurors
making racially biased statements. But this exception means …

Justice As Message Symposium: What We See When We See Law … Through The Eyes Of Dame Laura Knight, Diane Marie Amann

Scholarly Works

The eye cannot help but be drawn to the cover of Justice as Message, the new analysis by Carsten Stahn of, to quote the subtitle, Expressivist Foundations of International Criminal Justice. On the high-gloss paper jacket we see a tableau of blacks and browns and olive drab, accented only by the purple of a lawyer’s robe and the teal of a dossier perched on the bar behind him. In front, we see that the bench is buried in paper – paper that turns to ashes as the back wall gives way to a vision of buildings in ruin …