Law Commons^™

Reframing Hate, Lu-In Wang

Journal of Criminal Law and Criminology

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Journal of Criminal Law and Criminology

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

Journal of Criminal Law and Criminology

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …

Rethinking Reverse Location Search Warrants, Mohit Rathi

Journal of Criminal Law and Criminology

The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of …

Peremptory Challenges: Preserving An Unequal Allocation And The Potential Promise Of Progressive Prosecution, Savanna R. Leak

Journal of Criminal Law and Criminology

In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the …

Prison Abolition: From Naïve Idealism To Technological Pragmatism, Mirko Bagaric, Dan Hunter, Jennifer Svilar

Journal of Criminal Law and Criminology

The United States is finally recoiling from the mass incarceration crisis that has plagued it for half a century. The world’s largest incarcerator has seen a small drop in prison numbers since 2008. However, the rate of decline is so slow that it would take half a century for incarceration numbers to reduce to historical levels. Further, the drop in prison numbers has occurred against the backdrop of piecemeal reforms, and there is no meaningful, systematic mechanism to reduce incarceration levels. Despite this, there is now, for the first time, a growing public acceptance that prison is a problematic, possibly …

Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby

Journal of Criminal Law and Criminology

Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.

There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration …

The Corporate Insanity Defense, Mihailis E. Diamantis

Journal of Criminal Law and Criminology

Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where …

Criminalizing China, Margaret K. Lewis

Journal of Criminal Law and Criminology

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.

People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.

This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella …

The Specific Deterrent Effects Of Criminal Sanctions For Intimate Partner Violence: A Meta-Analysis, Joel H. Garner, Christopher D. Maxwell, Jina Lee

Journal of Criminal Law and Criminology

A dozen systematic reviews published since 1978 have sought to clarify the complexities of deterrence theory. These reviews emphasize the general deterrent effects of police presence, arrest, and incarceration on rates of homicide and other serious crimes, such as assault, rape, and burglary. These reviews provide less attention to specific deterrence processes and to the deterrent impacts of intermediate sanctions, such as prosecution or conviction; none of these reviews incorporate any of the research on criminal sanctions for intimate partner violence. To address these limitations, this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal …

Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, And Violence Against Women In Indian Country, Joseph Mantegani

Journal of Criminal Law and Criminology

Native American women face rates of sexual violence far beyond those experienced by any other race. But when those women live on reservations, their own tribes are restricted in their authority to protect their members. A maze of criminal jurisdiction overlies Indian country, one that depends on the location of the crime, the agreements a particular tribe has with local or federal authorities, the applicable federal jurisdictional statutes, and the offender’s race.

Since Oliphant v. Suquamish Indian Tribe in 1978, tribes have not had criminal jurisdiction over non-Indians who commit crimes on their reservations. Rather, tribes must rely on state …

The Modern Common Law Of Crime, Robert Leider

Journal of Criminal Law and Criminology

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily conventional. That is, …

Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu

Journal of Criminal Law and Criminology

Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes …

Regional International Juvenile Incarceration Models As A Blueprint For Rehabilitative Reform Of Juvenile Criminal Justice Systems In The United States, Robert Laird

Journal of Criminal Law and Criminology

Adolescence marks a unique and transformative time in a person’s physical, emotional, and intellectual development and requires special considerations in the realm of criminal justice. This Comment explores how rehabilitative models of criminal justice are better suited than punitive models to recognize and accommodate the intricacies and special factors inherent in juvenile delinquency and uses examples from regional international bodies to illustrate how the United States can adopt measures that align with modern-day neurology and psychiatry. First, this Comment explores the unique characteristics of juvenile offenders as adolescent, semi-autonomous individuals who are more likely to be incompetent to stand trial …

Capital Felony Merger, William M. Berry Iii

Journal of Criminal Law and Criminology

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” …

Missing The Misjoinder Mark: Improving Criminal Joinder Of Offenses In Capital-Sentencing Jurisdictions, Milton J. Hernandez Iv

Journal of Criminal Law and Criminology

In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant. Joinder pervades the American criminal justice system, and some jurisdictions see joinder in more than half of their cases. Most states and the federal courts use a liberal joinder system where courts may join offenses regardless of their severity or punishment. These systems derive from judicial efficiency arguments, seeking to avoid unnecessary trials and striving to conserve time, money, and other resources. In a liberal joinder regime, the court may force a defendant to prepare for a trial in …

Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring

Journal of Criminal Law and Criminology

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several …

Toward A More Perfect Trial: Amending Federal Rules Of Evidence 106 And 803 To Complete The Rule Of Completeness, Louisa M. A. Heiny, Emily Nuvan

Journal of Criminal Law and Criminology

The common law Rule of Completeness was designed to prevent parties from introducing incomplete—and thereby misleading—statements at trial. It ensured fundamental fairness by ensuring that a fact finder heard an entire statement or series of statements if the whole would “complete” the partial evidence presented. It served this important role in Anglo-American jurisprudence for centuries before the drafters of Federal Rule of Evidence 106 attempted to capture its essence in 1975. Unfortunately, what was once a simple and principled rule has been muddled by Federal Rule of Evidence 106 (FRE 106). The common law rule language was lost when FRE …

Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder

Journal of Criminal Law and Criminology

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …

Breonna Taylor: Transforming A Hashtag Into Defunding The Police, Jordan Martin

Journal of Criminal Law and Criminology

How can modern policing be reformed to address police violence against Black women when it can occur at no fault of their own and end with a shower of bullets in the middle of the night while within the sanctity of their own home? What is accomplished when her name is said but justice is never achieved? What good does it do when her story is subsequently overshadowed or overlooked by the reform movements that intend to correct racism and sexism respectively? This Comment analyzes both Black women’s vulnerability to police violence and their invisibility in reform movements. First, police …

Inaccuracy And The Involuntary Confession: Understanding Rogers V. Richmond Rightly, Dean A. Strang

Journal of Criminal Law and Criminology

No abstract provided.

Eyewitness Identification And The Problematics Of Blackstonian Reform Of The Criminal Law, Lawrence Rosenthal

Journal of Criminal Law and Criminology

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs.

This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason …

Race, Reform, & Progressive Prosecution, Daniel Fryer

Journal of Criminal Law and Criminology

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial …

Innocent Juvenile Confessions, Seth P. Waxman

Journal of Criminal Law and Criminology

No abstract provided.

Defining "Special Care", Ben Gifford

Journal of Criminal Law and Criminology

For the better part of the last century, the Supreme Court has held that courts must evaluate the voluntariness of juvenile confessions with “special care.” This special care requirement cautions courts against judging juveniles “by the more exacting standards of maturity” or comparing a juvenile suspect “with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” It also instructs courts to ensure that a juvenile’s “admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or …

False Confessions And Testimonial Injustice, Jennifer Lackey

Journal of Criminal Law and Criminology

In the criminal justice system, confessions have long been considered the gold standard in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. Since 1989, there have been 367 post-conviction DNA exonerations in the United States, and 28% of these involved false confessions. Moreover, false confessions involve everything from minor infractions to detailed accounts of violent crimes.

This article takes a close look at false confessions in connection with the phenomenon of testimonial injustice. It argues that false confessions provide a unique and compelling challenge to the current conceptual …

Protecting Crime Victims In State Constitutions: The Example Of The New Marsy's Law For Florida, Paul G. Cassell, Margaret Garvin

Journal of Criminal Law and Criminology

A majority of states have adopted state constitutional amendments protecting crime victims’ rights. Most of those amendments were adopted long ago and many fail to comprehensively address crime victims’ interests. In response to these shortcomings, the nation is seeing a new wave of state constitutional amendments protecting crime victims’ rights. Among these states is Florida, where in November 2018 Florida voters approved significantly expanded protections for crime victims in Florida’s Constitution—“Marsy’s Law for Florida.”

This Article explains in detail how Marsy’s Law for Florida provides important new protections for crime victims in the Florida criminal justice process. …

The Prosecutor As A Final Safeguard Against False Convictions: How Prosecutors Assist With Exoneration, Elizabeth Webster

Journal of Criminal Law and Criminology

Prosecutors have helped secure an unprecedented number of recent exonerations. This development, combined with the rapid emergence of district attorney-initiated conviction integrity units (CIUs) raises several questions. How do prosecutors’ offices review postconviction innocence claims? How do they make decisions about the merits of those claims? How do CIU processes differ from non-CIU processes? This study examines the circumstances surrounding prosecutor-assisted exoneration cases through semi-structured interviews with 20 prosecutors and 19 defense attorneys. It draws from a sample of both CIU and non-CIU prosecutors, thereby enabling comparisons. Respondents were asked about their experiences and decision-making structures in specific, post-2005 exoneration …

Retroactive Legality: Marijuana Convictions And Restorative Justice In An Era Of Criminal Justice Reform, Deborah M. Ahrens

Journal of Criminal Law and Criminology

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active …

Federal Detention And “Wild Facts” During The Covid-19 Pandemic, Gabriel A. Fuentes

Journal of Criminal Law and Criminology

No abstract provided.