Law Commons^™

Remembering California’S History In Youth Corrections, Sadie Minjares Odom

GGU Law Review Blog

California Governor Gavin Newson’s 2021-22 state budget sets forth plans to permanently close the California’s Division of Juvenile Justice and transition any children in the state’s care to the counties who committed them. On September 30, 2020, California lawmakers passed SB 823, the pillar of this transition. As the closure of the state-run juvenile correctional system marks a new journey for California’s youth, the state’s gloomy history in youth corrections looms overhead.

Attacks On The Asian Community: When Can Prosecutors Seek Hate Crime Enhancements?, Golden Gate University School Of Law

GGU Law Review Blog

At the start of 2021, images of violent attacks on Asian individuals all across the nation began flooding social media timelines. Large protests shortly followed these attacks in support of the Asian Community to “Stop Asian Hate.” Since then, reports and images of such attacks have only become more and more common, with the Atlanta Spa Shootings at the forefront of the conversation. As a result, much of the public and the media have been referring to these attacks as “hate crimes.” Yet, prosecutors are not seeking hate-crime enhancements in many of these cases. Several high-profile cases demonstrate the evidentiary ...

American Law Enforcement Responses To Covid-19, Matthew B. Kugler, Mariana Oliver, Jonathan Chu, Nathan R. Lee

JCLC Online

No abstract provided.

State Courts Must Combat Mass Incarceration By Granting Broader Retroactivity To New Rules Than Is Provided Under The Federal Teague V. Lane Test, Jamila Johnson, Talia Macmath

JCLC Online

No abstract provided.

Where Should We Land?: Flyover Districts As Proper Venue For Crimes Committed In Air On Domestic Flights, Megan E. Mccarthy

JCLC Online

This Essay explores the recently resolved circuit split between the Ninth, Tenth, and Eleventh Circuits regarding the proper venue for crimes committed on an airplane during flight. In 2019, the Ninth Circuit held that the proper venue for trying an assault that happened midflight was the district over which the airplane was flying when the assault occurred. While flyover districts may seem like a surprising and inconvenient choice for venue, flyover districts are the only constitutionally proper venue for point-in-time offenses that occur on airplanes during flight. Furthermore, using current aviation tracking protocols and GPS technology, courts can pinpoint the ...

Reimagining Criminal Justice: In Defense Of Self-Defense, Jude Diebold

Reimagining Criminal Justice

Since the Louisville, Kentucky police killed Breonna Taylor in the middle of the night in her own apartment, the United States has seen an uptick in protests against racially motivated police violence. However, the officers responsible for her death have not been criminally charged, in part because her boyfriend, unaware that police were entering the apartment in the middle of the night, shot one of the officer’s in the leg, “justifying” the next six rounds that were shot by the police and ultimately killed an innocent woman during the botched police raid.

As if this was not outrageous enough ...

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

Faculty Scholarship at Penn Law

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay ...

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs ...

Reimagining Criminal Justice: What Good Has Come From The 'Good' Faith Exception?, Yasamin Elahi-Shirazi

Reimagining Criminal Justice

On March 13, 2020, Breonna Taylor settled into bed with her boyfriend Kenneth Walker after she finished working back-to-back shifts as an emergency room technician in Louisville, Kentucky. At around 12:30 a.m., the couple heard banging coming from their front door, they asked who was at the door. They heard no response. Suddenly, the front door “flies off its hinges” and armed men began to enter their apartment. Walker, a licensed gun owner, fired at the intruders, shooting one in the leg, to protect himself and Ms. Taylor from unknown intruders.

The intruders returned fire, with around thirty ...

Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Criminal Law’S Core Principles, Paul H. Robinson

Faculty Scholarship at Penn Law

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles ...

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20^th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes ...

School Of Public Affairs 2020 Annual Report, Danae Swanson

School of Public Affairs Annual Reports

The School of Public Affairs’ annual report presents a magazine-style look back at the school’s year. Contents include the stories and accomplishments of current students, alumni, faculty, and other community partnerships. It also celebrates the generous giving of donors. A limited amount of print copies are produced and mailed to constituents. Support and collaboration of the annual report is regularly given by University Communications, the St. Cloud State University Foundation, St. Cloud State University Alumni Relations, University Archives, and the Departments of Criminal Justice, Economics, Geography & Planning, and Political Science.

Note: The School of Public Affairs annual report evolved ...

In Defense Of Moral Credibility, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby ...

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

Faculty Scholarship at Penn Law

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of ...

Internal And External Challenges To Culpability, Stephen J. Morse

Faculty Scholarship at Penn Law

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal ...

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that ...

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at ...

Law Library Blog (January 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Wage Theft Criminalization, Benjamin Levin

Articles

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes ...

Imagining The Progressive Prosecutor, Benjamin Levin

Articles

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic ...

The Presumption Of Innocence: A Golden Thread Always To Be Seen, Mark Zi Han Chia

Singapore Law Journal (Lexicon)

Although the presumption of innocence is fundamental to the modern criminal justice system, there is little clarity on what it is and how it applies. This essay argues that “innocence” in the criminal justice system should be confined to legal innocence and not factual innocence. Accordingly, the presumption of innocence should be confined to presuming the legal innocence of an accused. It follows then that the presumption of innocence cannot apply to any part of the criminal process apart from the trial itself. Further, jurisprudentially, given that the presumption of innocence is best understood as a procedural aspect of the ...

Sham Subpoenas And Prosecutorial Ethics, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Prosecutors are given broad freedom to conduct their investigations through-out the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.Unlike law enforcement officials who may use deceptive tactics throughout an investigation, prosecutors are subject to professional rules of responsibility. All lawyers are subject to some variation of Rule 4.2 of the Model Rules of Professional Responsibility—the No-Contact Rule—which prohibits a lawyer from communicating with a represented individual. Prosecutors, however, have escaped the Rule’s reach by ...

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine ...

Am I Angry? You Bet I Am! Watching The George Floyd Murder Trial, Cheryl Page

Journal Publications

We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek ...

The Slow Death Of The Reasonable Steps Requirement For The Mistake Of Age Defence, Isabel Grant

Faculty Publications

This article examines the demise of the “all reasonable steps” requirement in s. 150.1(4) of the Criminal Code which limits an accused’s ability to assert a mistaken belief in age as a defence to sexual offences against children where he has failed to take such steps. The article demonstrates that the Court of Appeal for Ontario in R v Carbone has rendered this requirement meaningless in Ontario. Even where the Crown has met its burden to prove beyond a reasonable doubt that the accused did not take “all reasonable steps” to ascertain age, the Crown must still ...

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“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 ...

Starting With Life: Murder Sentencing And Feminist Prison Abolitionist Praxis, Debra Parkes

Faculty Publications

Advocates of decarcation often focus their critiques on imprisonment for non-violent offences. In this vein, current advocacy efforts to end mandatory sentences in Canada tend to carve out “serious violent offences” as not part of a reform agenda. In this chapter, Debra Parkes sketches out the contours of an argument for why feminists might not want to cede that ground, why anti-carceral feminism might involve centering our analysis on the most, rather than the least, serious crimes – starting with those who are serving life sentences for murder. Parkes identifies four non-exhaustive reasons for that focus. The first reason relates to ...

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The ...