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The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

St. John's Law Review

(Excerpt)

Prosecutors are widely considered to be the most powerful actors in the criminal justice system. And federal prosecutors are particularly feared. While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing. There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences. For example, prosecutors have considerable power to bring a slew of charges …

Revoking Supervised Release In The Age Of Legal Cannabis, Zachary J. Weiner

St. John's Law Review

(Excerpt)

Supervised release—part of the original sentence following a guilty verdict—is a system by which federal probation officers monitor prisoners released from federal prison. In imposing supervised release, sentencing judges set conditions that each supervisee must comply with, or risk reincarceration at the discretion of the sentencing judge. Certain conditions of supervised release are prescribed by statute and others are crafted by judges.

If a defendant violates the terms of supervised release by possessing cannabis products, the statutory regime provides the sentencing judge with two options: revoke the defendant’s supervised release and reincarcerate her or, alternatively, release the defendant from …

Important Is Not Important Enough: Forcibly Medicating Defendants For Sentencing Using The Important Interest Standard, Sarah Viebrock

St. John's Law Review

(Excerpt)

This Note analyzes whether the Government’s interest in sentencing is the same as its interest in trial, and whether the “important interest” standard is a high enough threshold for the Government when it seeks to forcibly medicate a defendant for sentencing. This Note will conclude that because of the procedural alternatives to forcible medication at sentencing, the functional differences between trial and sentencing, and the spirit of the Supreme Court’s decision in Sell, the Government should be required to demonstrate a compelling, rather than an important, interest when it seeks to forcibly medicate a defendant for sentencing.

Part …

Triggerman: Maintaining The Distinction Between Deliberate Violence And Conspiracy Under The Armed Career Criminal Act, Elizabeth A. Tippett

St. John's Law Review

(Excerpt)

This Note argues that conspiracies to commit violent felonies are not violent felonies under § 924(e)(2)(B)(i) because, while criminals may participate in conspiracies in the hopes of accomplishing the underlying offense, conspiracies are distinct crimes and do not categorically have elements of threatened, attempted, or actual use of physical force. Part I of this Note describes relevant legal history behind the ACCA, the applicable law, and the process courts use to determine whether criminals are subject to the fifteen-year mandatory minimum. Part II analyzes the approaches represented in the circuit split. Part III demonstrates how relevant legislative history, case …

From Peer-To-Peer Networks To Cloud Computing: How Technology Is Redefining Child Pornography Laws, Audrey Rogers

St. John's Law Review

(Excerpt)

This Article traces the history of the child pornography laws and sentencing policy in Part I. Part II explains the technologies that have caused some of the current controversies, and then Part III describes how these technologies have blurred the offenses. Finally, Part IV makes suggestions as to how the law could better reflect technology and comport with a refined harm rationale. Courts, legal scholars, and medical experts have explained the harm includes the sexual abuse captured in the images and the psychological injury the victim endures knowing the images are being viewed. This Article further develops the harm …

In Whose "Best Interests"? – An International And Comparative Assessment Of Us Rules On Sentencing Of Juveniles, Jelani Jefferson Exum, John W. Head

Faculty Publications

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old)—including their treatment at the hands of the judicial system—should reflect an assessment of "the best interests of the child". An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child ("CRC"), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the "best interests" principle, by prescribing six key standards national juvenile justice systems are to follow …

Past Violence, Future Danger?: Rethinking Diminished Capacity Departures Under Federal Sentencing Guidelines Section 5k2.13, Eva E. Subotnik

Faculty Publications

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the …