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Articles 1 - 30 of 30
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Preventing Sexual Violence: Alternatives To Worrying About Recidivism, Eric S. Janus
Preventing Sexual Violence: Alternatives To Worrying About Recidivism, Eric S. Janus
Faculty Scholarship
How can it be that in the era in which almost one million Americans are on sex offender registries—most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness, all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past—that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws …
Wrongful Convictions And Upstream Reform In The Criminal Justice System, Kate Kruse
Wrongful Convictions And Upstream Reform In The Criminal Justice System, Kate Kruse
Faculty Scholarship
This Article explores the viability of upstream criminal justice reforms within the context of an adversary and procedural system of criminal justice, focusing on reforms in eyewitness identification procedures. Mistaken eyewitness identification evidence is often cited as the leading cause of wrongful convictions in the United States. Eyewitness identification reforms have also been the most developed upstream efforts to grow out of the innocence movement. The success and limitation of upstream reform in eyewitness identification shed light on the efficacy of upstream criminal justice system reform more generally, as well as in areas that are less developed, such as the …
Criminal Justice In Indian Country, Sarah Deer
Criminal Justice In Indian Country, Sarah Deer
Faculty Scholarship
On March 7,2013, President Obama signed the 2013 Violence Against Women Act Re-authorization ("VAWA 2013"). Contained within that legislation is a partial re-authorization of tribal criminal jurisdiction over non-Indians, which is a topic covered in this short article. VAWA 2013 recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence. The topics discussed in this article-statistical evidence, interdiction of violence, and protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by …
School Children And Parolees: Not So Special Anymore, Edwin Butterfoss
School Children And Parolees: Not So Special Anymore, Edwin Butterfoss
Faculty Scholarship
The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing …
Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones
Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones
Faculty Scholarship
A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …
A Crooked Picture: Re-Framing The Problem Of Child Sexual Abuse, Eric S. Janus
A Crooked Picture: Re-Framing The Problem Of Child Sexual Abuse, Eric S. Janus
Faculty Scholarship
This article discusses the problem of ending child sexual abuse using an allegory explaining that certain types of punitive solutions as solving the river "downstream", or in problem-solving mode, as opposed to "upstream", or in prospective problem avoidance. The thesis of this brief article is that our public policy is focused too far downstream. We rightly condemn child sexual abuse, but our public discourse frames the issue in a way that misdirects our public policy towards downstream solutions. If we truly want to protect our children from sexual abuse and end the cycle of violence, we need to reframe the …
Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Faculty Scholarship
The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …
Foreword To Articles Presented At The 2009 Childhood Sexual Abuse Awareness Conference, Phebe Saunders Haugen
Foreword To Articles Presented At The 2009 Childhood Sexual Abuse Awareness Conference, Phebe Saunders Haugen
Faculty Scholarship
This foreword introduces four papers presented at the William Mitchell Conference on Childhood Sexual Abuse. It reviews all of the programs and discussions presented at the conference, Understanding a Silent Tragedy: A Conference on Childhood Sexual Abuse, including the experience and knowledge of the authors of each paper. Finally, it reviews and introduces the subject matter covered by each paper.
Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones
Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones
Faculty Scholarship
Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …
In Re Gault And The Promise Of Systemic Reform, Kate Kruse
In Re Gault And The Promise Of Systemic Reform, Kate Kruse
Faculty Scholarship
The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …
A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss
A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss
Faculty Scholarship
This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …
Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse
Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse
Faculty Scholarship
The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The …
Judicial Deference Or Bad Law? Why Massachusetts Courts Will Not Impose Municipal Liability For Failure To Enforce Restraining Orders, Carolyn Grose
Judicial Deference Or Bad Law? Why Massachusetts Courts Will Not Impose Municipal Liability For Failure To Enforce Restraining Orders, Carolyn Grose
Faculty Scholarship
The authors take up the challenge that was thrown down by the Ford v. Town of Grafton court. The first part of this Article examines the somewhat tortured and fascinating history of the Massachusetts Tort Claims Act. It then describes the arguments Catherine Ford made, how the court responded, and why it responded as it did. In Part II, Massachusetts' strong commitment to protecting and assisting victims of domestic violence is examined. A variety of legislative, executive and judicial initiatives that demonstrate commitment are described, but the Massachusetts General Laws Chapter 209A, the restraining order statute, is emphasized. The article …
Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus
Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus
Faculty Scholarship
This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …
Minnesota's Sex Offender Commitment Program: Would An Empirically-Based Prevention Policy By More Effective?, Eric S. Janus
Minnesota's Sex Offender Commitment Program: Would An Empirically-Based Prevention Policy By More Effective?, Eric S. Janus
Faculty Scholarship
Minnesota’s sex offender commitment scheme is not just a bad idea; it likely has bad consequences. It is a huge and disproportionate sink for resources that ight be put to more effective use in the fight against sexual violence. Worse, its demand for resources will continue to grow, thus predetermining to a large extent how prevention and treatment dollars are spent. It is very possible that a more rational allocation of these resources would actually prevent more violence than the allocation that is automatically produced by the sex offender commitment scheme. At the very least, the fight against sexual violence …
Time And Money: One State's Regulation Of Check-Based Loans, Deborah A. Schmedemann
Time And Money: One State's Regulation Of Check-Based Loans, Deborah A. Schmedemann
Faculty Scholarship
This article, which is part narrative and part essay, describes one professor's experience working on “check cashing” (or “check-based loans”) cases at the Appalachian Research and Defense Fund in eastern Kentucky. Parts I and II describe the typical check-based loan transaction and its effects on low-income consumers. Part III recounts how the law of check-based loans has developed in Kentucky, during the professor’s time there and since. Part IV sets forth some observations about language and legal process, suggested by the preceding narrative.
Be My Guest: The Hidden Holding Of Minnesota V. Carter, Edwin J. Butterfoss, Mary Sue B. Snyder
Be My Guest: The Hidden Holding Of Minnesota V. Carter, Edwin J. Butterfoss, Mary Sue B. Snyder
Faculty Scholarship
This Article first examines the Carter case in detail, including the opinions of the state courts and the briefs and oral argument in the United States Supreme Court, before turning to the Court's decision. The Article highlights the importance of Justice Kennedy's concurring opinion and explains the "hidden holding" of the case, raising the question of whether lowercourts will apply the correct rule from the case. The Article argues that the Court's denial of the defendants' claim of a reasonable expectation of privacy, combined with its failure to provide guidance as to when non-overnight visitors in homes will have the …
The Underfederalization Of Crime, A. Kimberley Dayton
The Underfederalization Of Crime, A. Kimberley Dayton
Faculty Scholarship
This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government's share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does not …
Pain Relief For The Dying: The Unwelcome Intervention Of The Criminal Law, Phebe Saunders Haugen
Pain Relief For The Dying: The Unwelcome Intervention Of The Criminal Law, Phebe Saunders Haugen
Faculty Scholarship
This Article addresses physician-assisted suicide and the medical treatment of pain and suffering. Part II discusses various medical misconceptions about the treatment of pain and how modern medicine fails to fulfill this aspect of its palliative care role. Part III reviews how the law currently circumscribes the patient and doctor's ability to make medical decisions when the patient is terminally ill. As will be shown, the law is clearer and more respectful of good medical practice than most medical practitioners currently believe. Moreover, this section will also establish that, while several competing philosophical positions surrounding physician-assisted suicide exist, these same …
Toward A Conceptual Framework For Assessing Police Power Commitment Legislation, Eric S. Janus
Toward A Conceptual Framework For Assessing Police Power Commitment Legislation, Eric S. Janus
Faculty Scholarship
Recent litigation and scholarship have begun to focus on the substantive limits of the state's power to use civil commitment as a social control tool. Courts and commentators describe civil commitment as grounded on two powers of the state: the parens patriae interest and the police power. This Article seeks an analytical framework for defining the boundaries of police power commitments in which justification rests on the interests of the public rather than on the interests of the committed individual.
The Use Of Social Science And Medicine In Sex Offender Commitment, Eric S. Janus
The Use Of Social Science And Medicine In Sex Offender Commitment, Eric S. Janus
Faculty Scholarship
Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure "treatment centers." Litigation testing these statutes has sought to locate the border between legitimate exercise of the state's mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of …
Sex Offender Commitments: Debunking The Official Narrative And Revealing The Rules-In-Use, Eric S. Janus
Sex Offender Commitments: Debunking The Official Narrative And Revealing The Rules-In-Use, Eric S. Janus
Faculty Scholarship
Sex offender commitment laws present courts with a difficult choice: either allow creative efforts to prevent sexual violence or enforce traditional constitutional safeguards constraining the power of the state to deprive citizens of their Iiberty. Three state supreme courts have deflected this hard choice while upholding sex offender commitment schemes. As part of their ""official narrative"" that legitimizes sex offender commitments, the courts claim that society can have prevention and still maintain the primacy of the criminal justice system. This narrative neutralizes the conflict in values by claiming that sex offender commitments are just like mental illness commitments, a small, …
Extending The Guiding Lefthand Of Counsel: The Minnesota Supreme Court Provides Protection Against Uncounseled Waivers Of The Right To Counsel During Interrogations, Edwin J. Butterfoss, Lisa J. Burkett
Extending The Guiding Lefthand Of Counsel: The Minnesota Supreme Court Provides Protection Against Uncounseled Waivers Of The Right To Counsel During Interrogations, Edwin J. Butterfoss, Lisa J. Burkett
Faculty Scholarship
It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court's ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel …
Constitutional Constraints On Proving "Whodunnit?", John O. Sonsteng
Constitutional Constraints On Proving "Whodunnit?", John O. Sonsteng
Faculty Scholarship
American system places these constraints on the age old criminal law question: “WHODUNIT?” This article explores these issues.
The Privilege Against Compelled Self-Incrimination, John O. Sonsteng
The Privilege Against Compelled Self-Incrimination, John O. Sonsteng
Faculty Scholarship
This article examines the fifth amendment right against compelled self-incrimination, as compared to principles in confession law. These two areas of law are not the same. In 1966, however, the Supreme Court decision of Miranda v. Arizona announced that many of the principles involved in confession law also implicated the fifth amendment privilege against compelled self-incrimination. The popular impact of Miranda has resulted in the equating of confession law with the fifth amendment privilege. This article examines the history of the fifth amendment privilege, its application, and how it can be distinguished from other, related areas of law.
Fourth Amendment Applicability, John O. Sonsteng
Fourth Amendment Applicability, John O. Sonsteng
Faculty Scholarship
A large percentage of fourth amendment litigation involves the issues of applicability to place, waiver/consent, and the reasonable expectation of privacy. Not one of these issues, however, has the remotest thing to do with the ultimate substance of the fourth amendment protection itself. They deal exclusively with the threshold question of whether the fourth amendment is even involved. Only if it is, do the actual requirements of the fourth amendment become material. This article examines the applicability of the fourth amendment prohibition against unreasonable search and seizures with respect to these common issues.
Solving The Pretext Puzzle: The Importance Of Ulterior Motives And Fabrications In The Supreme Court's Fourth Amendment Pretext Doctrine, Edwin J. Butterfoss
Solving The Pretext Puzzle: The Importance Of Ulterior Motives And Fabrications In The Supreme Court's Fourth Amendment Pretext Doctrine, Edwin J. Butterfoss
Faculty Scholarship
This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court's definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court's definition includes both "legal" and fabricated pretexts. In a "legal" pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification …
Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson
Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson
Faculty Scholarship
In Wisconsin, trial courts have discretion to modify a defendant's criminal sentence if the defendant introduces a "new factor." Published Wisconsin case law gives little guidance on what constitutes a new factor. The Wisconsin Supreme Court has declined to find a new factor present in every case it has published since defining "new factor" in 1978. Because of ambiguous and conflicting rulings, the standards for both prongs of the new factor definition remain unclear. This Comment attempts to shed light on the new factor requirement for sentence modification by examining Wisconsin trial court decisions on a limited sample of sentence …
Rethinking Harmless Constitutional Error, A. Kimberley Dayton
Rethinking Harmless Constitutional Error, A. Kimberley Dayton
Faculty Scholarship
This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …
Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss
Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss
Faculty Scholarship
This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual's actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual's rights by failing to consider the …