Digital Commons Network^™

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley

Keith A Findley

Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reforms.

Using eyewitness misidentification—one of the leading contributors to wrongful convictions and the most thoroughly …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

Continuous Contamination: How Traditional Criminal Restitution Principles And Section 2259 Undermine Cleaning Up The Toxic Waste Of Child Pornography, Mary Margaret Giannini

Mary Margaret Giannini

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

Against Juvenile Sex Offender Registration, Catherine L. Carpenter

Catherine L Carpenter

Against Juvenile Sex Offender Registration Catherine L. Carpenter* Abstract Imagine if you were held accountable the rest of your life for something you did as a child? This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. It is both unremarkable and true that children …

Reforming Adult Felony Probation To Ease Prison Overcrowding: An Overview Of California S.B. 678, Jessica K. Feinstein

Jessica Feinstein

This article provides a holistic examination of California’s groundbreaking Community Corrections Performance Incentives Act, S.B. 678, passed in 2009 in response to California’s prison crisis. S.B. 678 seeks to create stable funding for county probation departments to implement evidence-based practices by shifting resources from the state prison budget to county probation. Probation is the most frequently imposed form of criminal sentence in California—nor is it limited to the least serious offenders. Estimates of the state’s adult probation population range from roughly 325,000 to 350,000. The article illuminates the goals and mechanisms of S.B. 678 and the challenges facing its implementation. …

Why Our Justice System Convicts Innocent People And The Challenges Faced By Innocence Projects Trying To Exonerate Them, Steven A. Krieger

Steven A. Krieger

Despite the prominence and success of the over sixty innocence projects in the United States, there is almost no empirical literature discussing how these organizations operate, what resources or factors contribute to their success, and what challenges they must overcome. This article is a foundational step to fill this void. Following a brief introduction, Part I of the article surveys the reasons why innocent individuals get convicted, including: inaccuracy of eyewitnesses, perjured testimony, availability of DNA testing, accuracy of DNA testing and scientific evidence, prosecutorial misconduct, ineffective defense representation, ineffective capital representation, police misconduct: false confessions, and pretrial criminal procedure …

Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston

James B Johnston

For those who detest capital punishment Christmas arrived early in 1997. On December 17, 2007 New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. The responses both domestically and abroad have been overwhelmingly supportive. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel of individuals appointed by Governor Corzine to study capital punishment and provide their findings to the State Legislature and the Governor. The commission recommended the death penalty be abolished and …

The Bridge Connecting Pontius Pilate's Sentencing Of Jesus To The New Jersey Death Penalty Study Commission's Concerns Over Executing The Innocent: When Human Beings With Human Flaws Determine Guilt Or Innocence And Life Or Death, James B. Johnston

James B Johnston

No abstract provided.

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser

ExpressO

The world abounds in instruments with which people can kill each other. Is the widespread availability of one of these instruments, firearms, a crucial determinant of the incidence of murder? Or do patterns of murder and/or violent crime reflect basic socio-economic and/or cultural factors to which the mere availability of one particular form of weaponry is irrelevant?

This article examines a broad range of international data that bear on two distinct but interrelated questions: first, whether widespread firearm access is an important contributing factor in murder and/or suicide, and second, whether the introduction of laws that restrict general access to …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Rethinking Public Engagement In The Administrative State, Mariano-Florentino Cuellar

ExpressO

This Article presents an empirical, doctrinal, and theoretical critique of public engagement in the modern administrative state. The legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert scientific decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach …

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Resource Parity For Defense Counsel And The Struggle Between Public Choice And Public Ideals, Ronald F. Wright

ExpressO

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. I ask whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources.

For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this …