Law Commons^™

In Re: Petition For Appointment Of A Prosecutor Pro Tempore By Jane Doe 1, Jane Doe 2, Jane Doe 3, And Jane Doe 4 : Petition For Appointment Of Prosecutor Pro Tempore, Paul Cassell, Heidi Nestel, Bethany Warr, Margaret Garvin, Gregory Ferbrache, Aaron H. Hanni

Utah Law Faculty Scholarship

This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that …

Overstating America's Wrongful Conviction Rate? Reassessing The Conventional Wisdom About The Prevalence Of Wrongful Convictions, Paul Cassell

Utah Law Faculty Scholarship

A growing body of academic literature discusses the problem of wrongful convictions — i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher — at least 1%, and perhaps as high as 4% or even more.

This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the …

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

Warren, Jr. (Joseph) V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 77 (Sep. 27, 2018) (En Banc), James Puccinelli

Nevada Supreme Court Summaries

The Court determined that NRS § 177.015(1)(a) authorizes the State to appeal from a justice court dismissal of a criminal complaint because such a decision is a final judgment, and that NRS § 178.562(2) does not limit the State’s remedies to appeal a justice court’s decision to dismiss a criminal complaint because this provision does not mention final judgment.

Judicious Imprisonment, Gregory Jay Hall

All Faculty Scholarship

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Ibarra Vs. State, 134 Nev. Adv. Op. 70 (Sept. 13, 2018) (En Banc), Whitney Jones

Nevada Supreme Court Summaries

The Court determined a defendant can be convicted of larceny from the person when a defendant fraudulently persuades a person to temporarily hand over their property, when in fact the defendant intends to permanently take the person’s property without the person’s consent for purposes of NRS 205.270(1).

Dunham (John) V. State, 134 Nev. Adv. Op. 68 (Sept. 6, 2018), Katrina Brandhagen

Nevada Supreme Court Summaries

The Court determined that the word “resides” in NRS 205.067(5)(b) does not require that the owner of a dwelling live permanently or continuously in the dwelling. The Court also held that the sentence of a maximum of 96 months in prison with parole eligibility after 38 months imposed on the appellant when a jury convicted him of home invasion, was not cruel and unusual punishment.

The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell

Utah Law Faculty Scholarship

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor …

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

Kentucky Criminal Law Reform In The Age Of Aquarius, Kurt Metzmeier

Faculty Scholarship

In Kentucky criminal law, it is useful to divide legal history into two broad eras: the years before the 1970s and those after that pivotal decade of reforms. The 1970s brought a new court system, a dramatic bail reform law which criminalized the hated bail-bondsmen and even a new court house. However, for the modern case law researcher the most significant change was the adoption of a statutory penal code—a code that marked a break between the two centuries of common-law crimes that preceded 1974 and the four decades afterwards.

All Eyez On Me': America's War On Drugs And The Prison-Industrial Complex, André Douglas Pond Cummings

Faculty Scholarship

In 1971, President Richard Nixon named drug abuse as “public enemy number one” in the United States. Since that time, an explicit “War on Drugs” has dominated the political imagination of the United States. Since declaring a War on Drugs, domestic incarceration rates have exploded, particularly in the African-American and Latino populations. Politicians such as Nixon, Barry Goldwater, and Nelson Rockefeller each advocated for harsh drug laws and severe criminal sanctions because they argued a strong correlation existed between drug addiction and crime. These claims have dominated legislative enactments since the 1970s, virtually ignoring those who argue that drug addiction …

Point/Counterpoint On The Miranda Decision: Should It Be Replaced Or Retained?, Paul Cassell, Amos N. Guiora

Utah Law Faculty Scholarship

In this point/counterpoint exchange, Professors Paul Cassell and Amos Guiora debate the U.S. Supreme Court’s decision in Miranda v. Arizona. Cassell challenges the decision, arguing that it has had harmful effects on American law enforcement efforts. Cassell cites evidence that the decision led to reduction in crime clearance rates and urges that the restrictions in the decision be replaced by a requirement that the police videotape interrogations. Cassell urges prosecutors to consider arguing that modern tools like videotaping creates a legal regime that allows the technical Miranda rules to be regarded as superseded relics of an outmoded and harmful prophylactic …

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. …

Bucklew V. Precythe : Brief Of Arizona Voice For Crime Victims, Inc., And Melissa Sanders As Amici Curiae In Support Of Respondents, Paul Cassell, Allyson N. Ho, Daniel Nowicki, Daniel Chen

Utah Law Faculty Scholarship

This amicus brief in Bucklew v. Precythe discusses how undue delay in capital cases can harm crime victims’ families. After reviewing the facts of the cases, the brief draws on the available scholarship to show how extended delays in criminal cases – and particularly death penalty cases – can compound the harms and exacerbate the trauma that victims’ families suffer. The brief concludes that the important interests of victims should be vindicated by affirming the judgment reached below.

The Effect Of Globalization On The National Criminal Law Systems, Shirin Ahmadi Dastjerdi, Abbas Sheikholeslami, Haniyeh Hojabrosadati

Library Philosophy and Practice (e-journal)

Globalization has influenced many human life scopes with a variety of tools, which the cyberspace playing the most role. Although both cyberspace and globalization have had many benefits to human life, both as a tool and as a process, they have been able to assist offenders to bring crime into the cyberspace without any trouble. Therefore, today criminologists discuss the globalized world of crime. Although, the processes of homogenization and globalization have been precious to human beings, should not be overlooked. In this article, the author has tried to explain the cybercrime in the age of globalization, with an emphasis …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 4, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the fourth of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on retail-level frauds. It proposes a limited purpose crypto currency. At the retail level the MJ Freeway or METRC software essentially functions as a marijuana-industry-specific point of sale (POS) system. It is common in retail for different industry sectors (restaurants, hotels, convenience stores, or gasoline stations) to have market-specific POS systems that are molded to fit the unique characteristics of …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 2, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

Legalization of marijuana burdens the States with the responsibility of (a) monitoring the physical flows of marijuana through the supply chain (making sure the marijuana does not enter inter-state commerce; making sure it stays out of the hands of minors, etc.), and (b) monitoring the fiscal flows (making sure the proceeds of marijuana production do not end up in criminal hands).

The type of controls favored by the states are track and trace (TAT), or seed-to-sale (STS) systems. These systems are reasonably complex, as well as technology-intensive. Nevertheless, there are questions about whether they are adequate to the enforcement needs. …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Mathews V. State, 134 Nev. Adv. Op. 63 (Aug. 23, 2018), Christi Dupont

Nevada Supreme Court Summaries

The Court clarified the requirements for the introduction of an expert witness under NRS 50.275. Moreover, the Court concluded that the district court abused its discretion when it improperly applied the Hallmark factors and disqualified Dr. Johnson from testifying. Accordingly, the Court granted the defendant a new trial.

Richard V. State, 134 Nev. Adv. Op. 64 (Aug. 23, 2018), Kaila Patrick

Nevada Supreme Court Summaries

The Court determined that a declarant must have testified and have been subject to cross-examination about a specific out-of-court statement for it to be excluded from the definition of hearsay as a prior inconsistent statement or identification. Further, the Court held that the errors of admission made by the district court were harmless.

Outlier: Iran And Its Use Of The Death Penalty, Ahmed Shaheed, Faraz Sanei

Faculty Scholarship

For several years now the right to life has been under heavy assault in the Islamic Republic of Iran. The country has followed a familiar but troubling pattern regarding the use of the death penalty. It has consistently ranked second in the world in the number of executions carried out (behind China), and first in executions per capita. More recently, the upward trend in executions that began in 2010-11 has reached alarming levels not seen in more than two decades. In 2015, alone, human rights organisations tracking the number of executions in Iran documented at least 966 executions, with over …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 1, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

On January 4, 2018, the Trump Administration through Attorney General Sessions rescinded an Obama-era policy1 that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases under the federal Controlled Substances Act,2 as well as under the Bank Secrecy Act.3 Federal law is at odds with state law in the majority of states on the legalization and subsequent state taxation of marijuana.4 Twenty-eight states and the District of Columbia have at least partially legalized marijuana. Eight of these states have legalized both medicinal and recreational use.5 With limited exceptions, legalized sales of marijuana are taxed.

We …

Rippo V. State, 134 Nev. Adv. Op. 53 (Aug. 2, 2018) (En Banc), Shady Sirsy

Nevada Supreme Court Summaries

The Court held that the appellant’s petition challenging his conviction for two first-degree murders and death sentences was both untimely and successive. Further, it affirmed the district court’s denial of the appellant’s petition as procedurally barred and determined that Rippo did not show good cause and prejudice to excuse the procedural bars to his petition. The United States Supreme Court vacated the Court’s opinion and remanded for further proceedings, reasoning that the Court applied the wrong legal standard as to Rippo’s judicial bias claim. On reconsideration, the Court held that an evidentiary hearing was required with respect to several issues …

Hubbard (Cory) V. State, 134 Nev. Adv. Op. 54 (Aug. 2, 2018) (En Banc), Matthew J. Mckissick

Nevada Supreme Court Summaries

The Court held that intent is automatically at issue for specific-intent crimes. Therefore, criminal defendants need not place intent or absence of mistake at issue before the State seeks to admit prior act evidence if the evidence is relevant to prove an essential element of the offense (i.e., intent for the crime of burglary). However, prior act evidence may still be inadmissible where its minimal probative value is substantially outweighed by the risk of unfair prejudice.

The Criminal Justice System And Latinos In An Emerging Latino Area, Betina Cutaia Wilkinson

Latino Public Policy

The topic of my study is Latinos’ attitudes and experiences with the criminal justice system in an emerging Latino area. There is an extensive amount of research on African Americans’ experiences and views of the criminal justice system yet our knowledge of Latinos’ experiences with the criminal justice system is quite scant. Still, a few studies have provided some foundation for our understanding of this topic. We know that immigrant policing is associated with Latinos’ reduced trust in government agencies and its programs (Cruz Nichols et al. 2018a). Restrictive immigration policies negatively impact Latinos’ physical and mental health (Cruz Nichols …

Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti

Faculty Scholarship

When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). …

Cooper V. State, 134 Nev. 52 (July 26, 2018) (En Banc), Xheni Ristani

Nevada Supreme Court Summaries

The Court invoked its supervisory powers and adopted a rule of admissibility to limit the use of a probationer’s testimony in a subsequent criminal proceeding.

State Of Nevada V. Second Judicial District Court., 134 Nev. Adv. Op. 51 (Jul. 19, 2018), Ronald Evans

Nevada Supreme Court Summaries

The Court determined that when the State allows a defendant to plead guilty to a first offense domestic battery for a second offense of domestic battery, the State must treat the second conviction as a first conviction for enhancement purposes unless the defendant receives appropriate clarification and warning of the State’s intention to use the second conviction as a second conviction for future enhancement purposes.