Law Commons^™

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Corruption In University Admissions And The Administrative Allocation Of Scarce Goods, L. Burke Files, Roger E. Meiners, Andrew P. Morriss

BYU Law Review

The Varsity Blues investigation uncovered a seamy side of university admissions. Multiple wealthy parents were indicted for securing their children s admission to selective institutions through bribery. Despite the publicity the indictments and guilty pleas received, and the public schadenfreude over the sight of celebrities being arrested, the investigation is most notable for what it did not do: it did not deploy the federal government's arsenal of anti-money laundering and anti-corruption tools against the universities involved. This represents a significant missed opportunity to address the serious problems that arise from rationing access to selective institutions via opaque, easily manipulated admissions …

Obstruction Of Justice: Redesigning The Shortcut, Ellen S. Podgor

BYU Law Review

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is …

“My Computer Is My Castle”: New Privacy Frameworks To Regulate Police Hacking, Ivan Škorvánek, Bert-Jaap Koops, Bryce Clayton Newell, Andrew Roberts

BYU Law Review

Several countries have recently introduced laws allowing the police to hack into suspects’ computers. Legislators recognize that police hacking is highly intrusive to personal privacy but consider it justified by the increased use of encryption and mobile computing—both of which challenge traditional investigative methods. Police hacking also exemplifies a major challenge to the way legal systems deal with, and conceptualize, privacy. Existing conceptualizations of privacy and privacy rights do not always adequately address the types and degrees of intrusion into individuals’ private lives that police hacking powers enable.

Traditional privacy pillars such as the home and secrecy of communications do …

Kill Me Through The Phone: The Legality Of Encouraging Suicide In An Increasingly Digital World, Sierra Taylor

BYU Law Review

No abstract provided.

Corpus Linguistics And The Criminal Law, Carissa Byrne Hessick

BYU Law Review

This brief response to Ordinary Meaning and Corpus Linguistics, an article by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive theory for criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.

The State Of The States: The Continuing Struggle To Criminalize Revenge Porn, Justin Pitcher

BYU Law Review

No abstract provided.

How To Incite Crime With Words: Clarifying Brandenburg’S Incitement Test With Speech Act Theory, Bradley J. Pew

BYU Law Review

No abstract provided.

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter R. Reilly

BYU Law Review

According to the U.S. Department of Justice, deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, this Article sets forth the argument that …

Criminalizing Non-Evacuation Behavior: Unintended Consequences And Undesirable Results, Brandon Curtis

BYU Law Review

No abstract provided.

Creating Crimmigration, César Cuahtémoc García Hernández

BYU Law Review

No abstract provided.

Mercy In Immigration Law, Allison Brownell Tirres

BYU Law Review

What role should mercy play in immigration law? This Article draws on the robust debate in the criminal law about the role of mercy in the hopes of starting a conversation among immigration law scholars and practitioners. Mercy skeptics argue that mercy contravenes justice, while advocates argue that mercy is a necessary countermeasure to the unrelenting harshness of criminal law today. I argue that the problems of mercy in the criminal law are amplified in the immigration law context. The lack of procedural and substantive protections for immigrants, the acceptance of unfettered discretion and lack of oversight of agency action, …

The Constitution Limits Of The "National Consensus" Doctrine In Eighth Amendment Jurisprudence, Kevin White

BYU Law Review

No abstract provided.

United States V. Ruiz-Gaxiola: When Criminal Defendants Say No To Drugs, Adam Dayton

BYU Law Review

No abstract provided.

United States V. Renzi: Reigning In The Speech Or Debate Clause To Fight Corruption In Congress Postrayburn, A.J. Green

BYU Law Review

No abstract provided.

Honest Services Fraud And The Fiduciary Relationship Requirement: How The Ninth Circuit Got It Wrong In United States V. Milovanovic, Samantha Hunter

BYU Law Review

No abstract provided.

United States V. Wise: Is Failure To Stop For The Police A Sentence-Enhancing Crime Of Violence?, Edan Burkett

BYU Law Review

No abstract provided.

Victory For Clergy Sexual Abuse Victims: The Ninth Circuit Strips The Holy See Of Foreign Sovereign Victory For Clergy Sexual Abuse Victims: The Ninth Circuit Strips The Holy See Of Foreign Sovereign Immunity In Doe V. Holy See, Edan Burkett

BYU Law Review

No abstract provided.

Boumediene V. Bush: Habeas Corpus, Exhaustion, And The Special Circumstances Exception, Brandon C. Pond

BYU Law Review

No abstract provided.

Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew

BYU Law Review

No abstract provided.

Protecting The Party Girl: A New Approach For Evaluating Intoxicated Consent, Christine Chambers Goodman

BYU Law Review

No abstract provided.

The Aftermath Of Crawford And Davis: Deconstructing The Sound Of Silence, Kimberly D. Bailey

BYU Law Review

No abstract provided.

Rockwell International, Pondcrete, And An A La Carte Three-Step Test For Determining An "Original Source" In Qui Tam Lawsuits, Matthew Lund

BYU Law Review

No abstract provided.

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

BYU Law Review

No abstract provided.

The Personal Is Political-And Economic: Rethinking Domestic Violence, Deborah M. Weissman

BYU Law Review

No abstract provided.

Recognizing Victims In The Federal Rules Of Criminal Procedure: Proposed Amendments In Light Of The Crime Victims' Rights Act, Paul G. Cassell

BYU Law Review

No abstract provided.

Tribunals Organized To Convict: Searching For A Lesser Evil In The Capital Juror Death-Qualification Process In United States V. Green, Richard Salgado

BYU Law Review

No abstract provided.

The Third Wave Of Crime Victims' Rights: Standing, Remedy, And Review, Douglas E. Beloof

BYU Law Review

No abstract provided.

Proximate Cause And Civil Rico Standing: The Narrowly Restrictive And Mechanical Approach In Lerner V. Fleet Bank And Baisch V. Gallina, Ryan C. Morris

BYU Law Review

No abstract provided.