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Full-Text Articles in Law
Modern Sentencing Mitigation, John B. Meixner Jr.
Modern Sentencing Mitigation, John B. Meixner Jr.
Northwestern University Law Review
Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …
Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French
Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French
JCLC Online
The U.S. Supreme Court established the “personal benefit” test in Dirks v. SEC to determine whether a tippee assumed a fiduciary duty to not trade based on or disclose inside information when a tipper breached his or her fiduciary duty by improperly disclosing such information to the tippee. Under the personal benefit test, a tipper breaches his or her fiduciary duty if the tipper derives a personal benefit, either directly or indirectly, from disclosing the inside information to a tippee. The Supreme Court provided examples as to what constitutes a personal benefit, such as the tipper’s expectation of reputational benefits …
Losing Someone Then Losing Yourself: Helping Juveniles In The Justice System Experiencing Grief With A Trauma-Informed Pretrial Diversion Program, Sydney Ford
JCLC Online
Grief is something we all experience at some point in our lives. When a child experiences grief and loss, those emotions, if not addressed, can cause adverse effects. Many of our country’s detained youth have fallen victim to these effects because they have been unable to address the underlying grief that causes their behaviors. Because of this, this Article advocates for creating a trauma-informed pretrial diversion program focused on helping grieving youth. First, this Article examines the overwhelming number of grieving children in our juvenile justice system, and how their grief has led them to where they are today. Second, …
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin
JCLC Online
The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the second in a series of two essays that explore Reginald McFadden’s commutation. This Part considers whether, in hindsight, there was any sound basis for McFadden’s release given the policy grounds for commutations and describes …
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
JCLC Online
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, …
Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden
Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden
Journal of Criminal Law and Criminology
Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to …
Paying For A Clean Record, Amy F. Kimpel
Paying For A Clean Record, Amy F. Kimpel
Journal of Criminal Law and Criminology
Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the …
How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty
How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty
Journal of Criminal Law and Criminology
Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich …
Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis
Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis
Journal of Criminal Law and Criminology
Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …
Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde
Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde
Journal of Criminal Law and Criminology
While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …
Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder
Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder
Journal of Criminal Law and Criminology
When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments …
Rethinking Prison For Non-Violent Gun Possession, Robert Weiss
Rethinking Prison For Non-Violent Gun Possession, Robert Weiss
Journal of Criminal Law and Criminology
Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop …
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin
JCLC Online
The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Northwestern Journal of Law & Social Policy
Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …
Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao
Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao
Northwestern Journal of Law & Social Policy
On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …
Considering A Domestic Terrorism Statute And Its Alternatives, Francesca Laguardia
Considering A Domestic Terrorism Statute And Its Alternatives, Francesca Laguardia
Northwestern University Law Review
Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate …
Sex Offender Civil Commitment To Prison Post-Kingsley, Arielle W. Tolman
Sex Offender Civil Commitment To Prison Post-Kingsley, Arielle W. Tolman
Northwestern University Law Review
Today, an estimated 5400 people are civilly committed under state and federal sex offender programs. This Note surveys these civil commitment regimes and finds that seventeen jurisdictions (sixteen states and the federal government) have enacted legislative schemes that authorize the indefinite civil detention of people charged with, or previously convicted of, sex offenses to prisons or prison-like facilities—often for their entire lives. By charting the pervasiveness of sex offender civil commitment to prison, this Note provides new evidence that these sex offender civil commitment statutes are, in fact, punitive and, therefore, unconstitutional. Moreover, this Note argues that the Supreme Court’s …
The Fourth Amendment In The Age Of Persistent Aerial Surveillance, John Pavletic
The Fourth Amendment In The Age Of Persistent Aerial Surveillance, John Pavletic
Journal of Criminal Law and Criminology
If Big Brother made movies, persistent aerial surveillance would be its masterpiece. Small airplanes are rigged with high-tech cameras that can continuously transmit real-time images to the ground. The aircraft is able to monitor an area of thirty square miles for ten hours at a time. This technology allows video analysts to zoom in and track the location of vehicles, and even people. It was originally designed for military use during the Iraq War, but since then, it has been adapted for civilian applications. In 2016, the Baltimore Police Department contracted with Persistent Surveillance Systems to carry out a trial …
Technological Incarceration And The End Of The Prison Crisis, Mirko Bagaric, Dan Hunter, Gabrielle Wolf
Technological Incarceration And The End Of The Prison Crisis, Mirko Bagaric, Dan Hunter, Gabrielle Wolf
Journal of Criminal Law and Criminology
The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve …
A More Just System Of Juvenile Justice: Creating A New Standard Of Accountability For Juveniles In Illinois, Brooke Troutman
A More Just System Of Juvenile Justice: Creating A New Standard Of Accountability For Juveniles In Illinois, Brooke Troutman
Journal of Criminal Law and Criminology
For over a century, America’s legal system has made substantial reforms to change its treatment of adolescents. Every day, we see that our legal system treats adolescents differently from their adult counterparts. With regards to driving privileges, voting rights, and the ability to drink, our laws recognize that adults and adolescents are different and therefore require a different set of standards. America extended this treatment to the realm of juvenile justice in 1899, when Cook County, Illinois, created the country’s first juvenile court. Originating in this court was the overarching purpose of America’s juvenile justice system—rehabilitation of juvenile offenders. Though …
The Local-Control Model Of The Fourth Amendment, Michael J. Zydney Mannheimer
The Local-Control Model Of The Fourth Amendment, Michael J. Zydney Mannheimer
Journal of Criminal Law and Criminology
Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated …
The Thin Blue Line From Crime To Punishment, Alice Ristroph
The Thin Blue Line From Crime To Punishment, Alice Ristroph
Journal of Criminal Law and Criminology
Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal …
The Effects Of Body-Worn Cameras On Police Activity And Police-Citizen Encounters: A Randomized Controlled Trial, Anthony A. Braga, William H. Sousa, James R. Coldren, Jr., Denise Rodriguez
The Effects Of Body-Worn Cameras On Police Activity And Police-Citizen Encounters: A Randomized Controlled Trial, Anthony A. Braga, William H. Sousa, James R. Coldren, Jr., Denise Rodriguez
Journal of Criminal Law and Criminology
Many have suggested that placing body-worn cameras (BWCs) on police officers improves the civility of police-citizen encounters and enhances citizen perceptions of police transparency and legitimacy. In response, many police departments have adopted this technology to address public concerns over the quality of policing in their communities. The existing program evaluation evidence on the intended and unintended consequences of outfitting police officers with BWCs is still developing, however. This study reports the findings of a randomized controlled trial involving more than 400 police officers in Las Vegas, Nevada. We find that officers equipped with body-worn cameras generated fewer complaints and …
Not Yet Gone, And Not Yet Forgotten: The Reasonableness Of Continued Mandatory Detention Of Noncitizens Without A Bond Hearing, Miriam Peguero Medrano
Not Yet Gone, And Not Yet Forgotten: The Reasonableness Of Continued Mandatory Detention Of Noncitizens Without A Bond Hearing, Miriam Peguero Medrano
Journal of Criminal Law and Criminology
Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the mandatory detention, without the possibility of bond, of noncitizens convicted of certain qualifying offenses for the duration of their removal proceedings. Congress enacted the mandatory detention statute because it was concerned that noncitizens who are convicted of crimes will further engage in criminal activity and fail to appear for their removal hearings. To ensure noncitizens are not deprived of their constitutional right to due process, federal courts have construed § 1226(c) to contain an implicit time limitation against unreasonably prolonged detention. These courts have adopted either …
The Regulatory Challenge Of Public Corruption, Lauren M. Ouziel
The Regulatory Challenge Of Public Corruption, Lauren M. Ouziel
Journal of Criminal Law and Criminology
No abstract provided.
Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope
Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope
Journal of Criminal Law and Criminology
The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …
Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein
Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein
Journal of Criminal Law and Criminology
An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …
The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones
The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones
Journal of Criminal Law and Criminology
The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against …
Virtual Shackles: Electronic Surveillance And The Adultification Of Juvenile Courts, Chaz Arnett
Virtual Shackles: Electronic Surveillance And The Adultification Of Juvenile Courts, Chaz Arnett
Journal of Criminal Law and Criminology
In recent years, there has been a groundswell of attention directed at problems within the American criminal justice system, led in part by Michelle Alexander’s groundbreaking book, The New Jim Crow, and most recently through the efforts of the Black Lives Matter movement. This increased focus on the harms of over-incarceration and net-widening, has had the benefit of introducing to the public other practices utilized in the criminal justice system, such as the widespread use of ankle monitors to track the location of defendants and released offenders. Yet, despite this greater attention, legal scholarship has only recently begun to grapple …
A Broken Windows Theory Of Sexual Assault Enforcement, Erin Sheley
A Broken Windows Theory Of Sexual Assault Enforcement, Erin Sheley
Journal of Criminal Law and Criminology
The law of sexual assault is in conflict. Jurisdictions struggle with the conceptual shift from thinking of rape as forcible sex to a broader understanding that turns on the meaning of consent. Due to resource, evidentiary, and reporting problems there is a mismatch between the new substantive understanding of sexual assault and its actual enforcement. This has led to something of a cultural war by survivors and many women generally against the idea of “rape culture,” which runs the risk of categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive. This article proposes that lessons …