Digital Commons Network^™

Deconstructing Burglary, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

The law of burglary has long played a vital role in protecting hearth and home. Because of the violation of one’s personal space, few crimes engender more fear than burglary; thus, the law should provide necessary safety and security against that fear. Among other things, current statutes aim to deter trespassers from committing additional crimes by punishing them more severely based on their criminal intent before they execute their schemes. Burglary law even protects domestic violence victims against abusers who attempt to invade their lives and terrorize them.

However, the law of burglary has expanded and caused so many problems …

A Model State Compensation Law For The Wrongfully Convicted, Jacqueline Kamel

Journal of Legislation

No abstract provided.

Protecting The Innocent: How To Prevent The Consequences Of Misidentification And Doxing By Volunteers Helping With Open Source Investigations, Leigh M. Dannhauser

Catholic University Journal of Law and Technology

Individuals performing open source investigations can misidentify alleged perpetrators and dox innocent parties online, which can subsequently lead to threats and harassment against innocent parties and their loved ones. For example, threats were made against Sunil Tripathi’s family after he was wrongly identified as one of the Boston Marathon bombers and doxed on Reddit and Twitter. In 2020, the Berkeley Protocol on Digital Open Source Investigations was published as a guide, and it includes a set of principles to govern open source investigations. However, the Berkeley Protocol is limited to open source investigations performed by those working for organizations. It …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Mitigating Sex Trafficking: Preventative Methods For Reducing Sexual Exploitation, Autumn Rain Monroe

University Honors Theses

In recent years, sex trafficking has become more well-known in the public sphere, generating activism and legislation in an effort to combat this human rights issue. With this increased awareness comes challenges in appropriately understanding sex trafficking. The general public and even lawmakers often do not understand the complete dynamic or complexities of sex trafficking. Definitional inconsistencies make it difficult to provide a universal definition of sex trafficking, contributing to misconceptions involving the methods of entry and the barriers to exiting. Ultimately, this prevents proper identification of victims, hinders the protection of victims, and the implementation of survivor-oriented legislation, meaning …

“Take The Motherless Children Off The Street”: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

University of Miami Law Review

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the …

Policing & The Problem Of Physical Restraint, Steven Arrigg Koh

Faculty Scholarship

The Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous …

“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin

Scholarship@WashULaw

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Articles

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

The Ultimate Injustice: States' Failure To Take Steps To Prevent Wrongful Convictions And, When Wrongful Convictions Are Exposed, To Provide Adequate Assistance To Exonerees, Natalie Lahera

FIU Law Review

Among the many rights guaranteed by the Constitution are the rights to a presumption of innocence, equal protection, due process, a speedy trial, a trial by jury, and legal counsel, if indigent and charged with a serious crime. But those rights do not ensure that the justice system succeeds every time. The United States has exonerated over 3,000 individuals since 1989. The exonerees have collectedly lost over 26,700 years of their lives. Each exoneration has provided insight into the causes of wrongful convictions, the issues with current compensation laws, and even the changes that need to be implemented to avoid …

Prosecuting The Crisis, Benjamin Levin

Scholarship@WashULaw

Over the past decade, activists and academics have celebrated the rise of the so-called “progressive prosecutor” movement. District attorney candidates—often former public defenders or civil rights lawyers—have promised to use prosecutorial discretion to address the injustices of the criminal system. A proliferation of such campaigns, and the electoral successes of some of these candidates have raised questions about progressive prosecution: what does it actually mean to be a progressive prosecutor? Does progressive prosecution work? Do progressive candidates follow through on campaign promises? And, how enthusiastic should defense attorneys, reformers, and critics of the carceral state be about progressive prosecution? The …

After The Criminal Justice System, Benjamin Levin

Scholarship@WashULaw

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But, as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the criminal legal system, the criminal punishment system, the prison industrial complex, etc. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or, does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary …

The Law And Politics Of Ransomware, Asaf Lubin

Articles by Maurer Faculty

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between 20,000 and 30,000 per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims …

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

"Serving Time And It's No Longer A Crime: An Analysis Of The Proposed Cannabis Administration And Opportunity Act, Its Potential Effects At The Federal And State Level, And A Guide For Practical Application By Local Government", R. Allyce Bailey

University of the District of Columbia Law Review

There has been much recent discussion surrounding cannabis use with some researchers supporting the use of medical marijuana, some investors relishing in the recently booming cannabis and CBD industry, and some states decriminalizing marijuana and even harsh controlled substances. As it appears, at least some public opinion is changing regarding marijuana, but the law has not effectively caught up to that change. Bias in the criminal justice system has led to the over-policing of, higher conviction rates, and harsher sentences for minorities. Thus, the decriminalization of marijuana alone does not remedy the grave disproportionate negative effects on populations of color …

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

The Pathological Whiteness Of Prosecution, India Thusi

Articles by Maurer Faculty

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness …

The Broken Fourth Amendment Oath, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …

Emotional Distress Recovery For Mishandling Of Human Remains: A Fifty State Survey, Christopher Ogolla

Faculty Scholarship

No abstract provided.

Post-Conviction Release And Defacto Double Jeopardy: Making The Case For Felons As A Quasi-Suspect Class Due To The Collateral Consequences Of A Felony Conviction

Florida A & M University Law Review

Felons are a prime example of a sub-class of individuals that, once convicted in a court of law, are classified, punished, stigmatized, stripped of their rights as American citizens, and discriminated against. Could this be a form of De Facto double jeopardy? While felons are not literally subjected to a second trial within the judicial system for the same offense, felons face a pseudo trial with society, as its jury, upon re-entry into society, based on the continual discrimination for crimes they have already served time for. The enactment of discriminatory laws against felons dehumanizes the individual by discarding their …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Carceral Progressivism And Animal Victims, Benjamin Levin

Scholarship@WashULaw

This chapter places the criminalization of harm to non-human animals within a larger context of left and progressive efforts to use criminal law to address social problems. This chapter treats the animal welfare movement’s turn to criminal legal solutions as a case study of the broader phenomenon of “carceral progressivism.” Specifically, the chapter identifies this case study as reflecting two particularly common features of left or progressive criminalization projects: (1) the presence of a particularly vulnerable class of victims; and (2) the claim that criminal law can send a message about society’s respect for that class of victims and condemnation …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Criminal Law Exceptionalism, Benjamin Levin

Scholarship@WashULaw

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley

Journal of Criminal Law and Criminology

Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …

Criminal Justice Expertise, Benjamin Levin

Scholarship@WashULaw

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions; and (2) the democratic, which treats criminal policy as insufficiently responsive …

Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung

Catholic University Journal of Law and Technology

This article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take …

Victims’ Rights Revisited, Benjamin Levin

Scholarship@WashULaw

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

Confrontation’S Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Texas A&M Law Review

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …