Law Commons^™

Schools Fail To Get It Right On Rap Music, Andrea L. Dennis

Popular Media

School officials treat rap music as a serious threat to the school environment. Fear and misunderstanding of, as well as bias against, this highly popular and lucrative musical art form negatively shape their perspectives on this vital aspect of youth culture.

As a result, students who express themselves through rap music in a way that challenges the schoolhouse setting risk the possibility of suspension, permanent exclusion and referral to the criminal justice system.

The ongoing case of Taylor Bell is the latest and most complex battleground on which this issue is playing out.

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

All Faculty Scholarship

This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story …

Legal Beagle's Blog Archive For November 2015, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

O. Carter Snead

No abstract provided.

Public Defenders And Appointed Counsel In Criminal Appeals: The Iowa Experience, Tyler J. Buller

The Journal of Appellate Practice and Process

No abstract provided.

Decisions To Prosecute Battered Women's Homicide Cases: An Exploratory Study, Sarah N. Welling, Diane Follingstad, M. Jill Rogers, Frances Jillian Priesmeyer

Law Faculty Scholarly Articles

Discretionary decisions to prosecute cases in which a battered woman kills her partner were investigated using several research strategies and targeting a range of case elements. Law students presented with case elements reported they would consider legal elements over nonlegal (or ‘supplemental’) elements when making a decision to prosecute. In contrast, law students assessed through an open-ended format as to important case factors for deciding to prosecute spontaneously generated high proportions of supplemental case elements compared with legal factors. Vignette comparisons of 42 case elements on participants’ likelihood to prosecute identified salient factors including legal and supplemental variables. Themes from …

Criminal Law And The Counter-Hegemonic Potential Of Harm Reduction, Alana Klein

Dalhousie Law Journal

Harm reduction approaches to drug use have been lauded for saving lives, being cost-effective, elevating pragmatism over prohibitionist ideology, being flexible in tailoring responses to the problem, and for their counter-hegemonic potential to empower people who use drugs. This article examines the legal systems engagement with harm reduction, and, in particular,recent cases that incorporate harm reduction s focus on empirical evidence in policy making into Canadian constitutional rights jurisprudence. It argues that harm reduction approaches in this venue may hold promise as a bulwark against some of the marginalizing features of traditional criminaljustice approaches. However, the article also warns of …

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

Marquette Law Review

None

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

University of Miami Law Review

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

Lessons Learned From Ferguson: Ending Abusive Collection Of Criminal Justice Debt, Neil L. Sobol

Faculty Scholarship

On March 4, 2015, the Department of Justice released its scathing report of the Ferguson Police Department calling for “an entire reorientation of law enforcement in Ferguson” and demanding that Ferguson “replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Unfortunately, abusive collection of criminal justice debt is not limited to Ferguson. This Article, prepared for a discussion group at the Southeastern Association of Law Schools conference in July 2015, identifies the key findings in the Department of Justice’s report …

Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan

Lee N Gilgan

This study would add to available research regarding recidivism rates following incarceration in private prisons in contrast to incarceration in government-run prisons. This is a non-experimental meta-analysis viewing numerous studies discussing the effects of multiple covariants within public and private prisons. Based on the information and conclusion in these studies, we find that there is little overall consensus concerning the effects of increased privatization on recidivism. While many studies find certain aspects of privatization to have some potential effect on recidivism, there are many other aspects that either are out of scope or have a negative effect on recidivism. However, …

State V. Merlino, 131 Nev. Adv. Op. No. 65 (Sept. 10, 2015), Brittany L. Shipp

Nevada Supreme Court Summaries

The issue before the Court was whether selling stolen property through a retractable sliding tray on a pawn shop’s drive-through window satisfied the element of unlawful entry of a building as defined in the burglary statute. The Court held that when the outer boundary of a building is not self-evident from the shape and contours of the structure itself, courts must apply California’s “reasonable belief” test which legally defines the outer boundary to include, “any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization.”

State V. Smith, 131 Nev. Adv. Op. 63 (Sept. 3, 2015), Jessie Vargas

Nevada Supreme Court Summaries

Defendant Terrance Reed Smith entered a no contest plea to one count of child abuse resulting in substantial bodily harm. The Supreme Court of Nevada held Smith’s plea was involuntary because the plea was made in response to acts of coercion by the Washoe County Department of Social Services (“DDS”).

Cassinelli V. State Of Nevada, 131 Nev. Adv. Op. 62 131(Aug. 27, 2015), Mackenzie Warren

Nevada Supreme Court Summaries

The Court of Appeals determined that (1) the district court erred by ruling that Cassinelli was not eligible for alcohol treatment under NRS § 458.300(1)(d); (2) the district court did not abuse its discretion by denying Cassinelli’s request for assignment to a program of treatment; (3) the plea agreement was not breached and the prosecutor did not engage in misconduct at sentencing; (4) the district court did not err by refusing Cassinelli an opportunity to cross-examine the victim during her impact statement at sentencing; (5) Cassinelli’s sentence was illegal.

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

Criminal Law - Search And Seizure - Scope Of The Term - "Frisk"; State V. Henry, Anthony J. Occhipinti Jr.

Akron Law Review

State v. Henry is a case involving prosecution for the unlawful possession of narcotic drugs. Henry was convicted on evidence obtained as a result of a "frisk." It should be made clear at the outset that a "frisk" is not a "full" search as is permitted in situations where there is probable cause for arrest. The "frisk" is limited to a protective search or pat-down of the outer clothing for the purpose of detecting weapons. Even though probable cause is not a condition precedent to a "frisk," the "frisk" is, nevertheless, governed by the Reasonableness Clause of the Fourth Amendment. …

Criminal Law - Search And Seizure - Scope Of The Term - "Frisk"; State V. Henry, Anthony J. Occhipinti Jr.

Akron Law Review

State v. Henry' is a case involving prosecution for the unlawful possession of narcotic drugs. Henry was convicted on evidence obtained as a result of a "frisk." It should be made clear at the outset that a "frisk" is not a "full" search as is permitted in situations where there is probable cause for arrest. The "frisk" is limited to a protective search or pat-down of the outer clothing for the purpose of detecting weapons. Even though probable cause is not a condition precedent to a "frisk," the "frisk" is, nevertheless, governed by the Reasonableness Clause of the Fourth Amendment. …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

Infanticide - Requirement That The Victim Be Born Alive; State V. Dickinson, Richard R. Wilfong

Akron Law Review

This case is unique, because it is the first time a court has imposed a conviction of homicide for the death of a viable unborn fetus caused by an unlawful but unintentional act. The evidence is persuasive beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol, without due regard for the safety and rights of others, and in such a manner as to endanger the life or property of other persons in lawful use of the streets and highways. The soundness of the court's finding depends upon a determination of the …

Duty Of Trial Judge When Defendant Objects To Competency Of His Counsel; State V. Deal, Nicholas T. George

Akron Law Review

Obviously, from the quoted statement, Justice Schneider felt that the Supreme Court had no way of knowing whether or not the objection was valid. The record failed to reveal why there was no alibi defense filed or why there were no defense witnesses called. The record being silent, one could hypothesize that appointed counsel talked to defendant's witnesses and felt that their testimony would be of no avail. Moreover, it is possible that after appointed counsel investigated the alibi defense he found it useless. It is here, to this third issue, that the force of the Supreme Court's decision must …

Application Of Ohio Post-Conviction Procedure - Effect Of Prior Judgment On.; Coley V. Alvis, Thomas A. Geraci Jr.

Akron Law Review

In the per curiam decision of Coley v. Alvis' the United States Court of Appeals for the Sixth Circuit reversed an Ohio District Court decision dismissing Coley's petition for habeas corpus for failure to exhaust his state remedies. The circuit Court remanded, stating that it would be futile for petitioner to attempt to void his conviction under the Ohio post-conviction statute because of the narrow limits placed on it by the state courts and that there was consequently no longer any effective state remedy. Since the grounds that petitioner set forth to sustain his writ did not fall within any …

Constitutional Rights Of Youthful Offenders; In The Matter Of Gault, Robert M. Kunczt

Akron Law Review

After the decisions in Gideon v. Wainwright, 372 U. S. 335 (1963), Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964), which revealed the Supreme Court's solicitude of the constitutional rights of adults, it seemed improbable that the lower courts would long be permitted to continue ignoring the constitutional rights of juveniles. Thus the decision in the principal case, which represents a breakthrough in the assurance of a fair hearing to minors, comes as no surprise. The case holds that under the Fourteenth Amendment a juvenile has a right to notice of …

Confessions, Miranda's Applicability; Clewis V. Texas, Howard E. Mentzer

Akron Law Review

Recent United States Supreme Court decisions concerning the admissibility of statements or confessions into evidence have sharply curtailed haphazard interrogation procedures. As courts have become more punctilious about "due process" and other constitutional guarantees, a greater degree of care and fairness has been demanded in soliciting information and advising uninformed individuals of their rights.

The Admissibility Of Polygraph ("Lie Detector") Evidence Pursuant To Stipulation In Criminal Proceedings, Bruce C. Heslop

Akron Law Review

American courts have traditionally held that evidence pertaining to the results of a lie-detector test is inadmissible in a criminal proceeding on behalf of either the prosecution or defense….In recent years, however, a few jurisdictions have withdrawn from the traditional approach and have admitted lie-detector evidence in limited situations, notwithstanding objection by the adverse party….The decision of whether or not to adopt the approach presented here must critically evaluate the potential value of polygraph evidence along with its potential dangers. In so doing, the courts of Ohio should determine whether a procedure may be devised to maximize the value and …

Evidence - Admissibility Of Statements To Parole Officer - Miranda Warnings; State V. Gallagher, Thomas A. Treadon

Akron Law Review

The opinion handed down in this recent decision from the Montgomery County Court of Appeals examined a question of first impression in the courts of Ohio. The issue presented was "whether a parole or probation officer is a law enforcement officer within the contemplation of Miranda and thus subject to the Miranda requirements of constitutional warnings to suspects during custodial interrogation...."

Searches And Seizures - Arrest - Motor Vehicle Exception To Warrant Requirement - Limits? People V. Dumas, Gordon D. Arnold

Akron Law Review

On May 11, 1970, officers of the Los Angeles Police Department approached the apartment of Clay Dumas. Based on a report from a reliable informant, whose information had been corroborated by independent police investigation, the police had obtained a warrant to search Dumas' apartment and "all trash cans, storage areas, garages and carports which are assigned to and/or used by occupants of the aforesaid apartment." The objects of the search were certain stolen bonds and bank checks which, according to the police informant, Dumas had been in possession of for about eight weeks; also narcotics and narcotics gear. The police …

The Reach Of The Law: Sin, Crime And Poor Taste, Alexander B. Smith, Harriet Pollack

Akron Law Review

The past decade has been a period of intensive reevaluation of the law. The criminal law, in particular, has been subjected to an especially intensive criticism. These attacks fall largely into two categories: criticisms of the legitimacy of our penal codes, and criticisms of their efficiency.
Starting with the Civil Rights Movement of the Kennedy era with its heavy emphasis on civil disobedience as a tool of protest, the legitimacy of many of our laws was called into question. When Rosa Parks sat in the front of the bus in Montgomery, Alabama, she was not simply breaking the law; she …

Entrapment - An End? State V. Rowan, Kenneth D. Morse

Akron Law Review

Rowan creates a trap for the individual who is confronted by the undercover narcotics agent and who had no intention of committing the crime. That the crime is more likely to occur under Rowan cannot be doubted. It is of utmost significance that the narcotics agent may sell and deliver drugs. Courts cannot ignore a change of social mores which have occurred. 25 More and more people are willing to accept the existence of conduct which was previously branded as criminal behavior. It is precisely these people that the Rowan decision sets out to trap.

Electroshock Injustice In Athens-Clarke County, Part 4, Donald E. Wilkes Jr.

Popular Media

This article, part 4 in a series, reviews the Athens Clarke County Police Department's (ACCPD) decision to purchase tasers and looks at comments from ACCPD's new police chief.