Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

Moral Understanding And Criminal Responsibility Of Psychopaths: Evolution Of A Meta-Ethical Niche, William Watson

William Watson

A growing body of moral and legal philosophical analysis both highlights the relevance of research findings on psychopathy for the theory of responsibility, and argues for the responsibility, non-responsibility or partial responsibility of psychopaths, in most cases taking criminal responsibility to flow from moral responsibility. Although not the only grounds of analysis, the moral psychological concern with the nature of moral understanding, and the questions of whether and to what degree psychopaths have it, are issues at the centre of the debate. This paper identifies four approaches to these issues: Rationalist Motivational Internalism; Sentimentalist Motivational Internalism; Conduct Rationality Holism, an …

Mental Illness, Police Power Interventions, And The Expressive Functions Of Punishment, Robert F. Schopp

Robert F Schopp

The state exercises coercive force under the police power to protect the public order, security, and justice. When individuals who manifest significant psychological impairment harm or endanger others, police power interventions can involve several different institutional structures within the criminal justice system or the alternative institution of civil commitment. The analysis presented in this paper draws attention to the significance of the expressive functions of criminal punishment in selecting the most justified institutional structures for police power interventions intended to prevent impaired individuals from harming others. These functions arguably carry important implications for impaired individuals who harm or endanger others, …

A Better Agenda For The Sentencing Commission: Reducing Mass Incarceration, Lynn Adelman

Lynn Adelman

Abstract The United States presently incarcerates about 2.3 million people. We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners. Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly. The federal government contributes significantly to this problem. Every week it locks up a record number of …

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

David N Cassuto

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict. This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

“Stand Your Ground” Laws And Justice: The Controversy Over Immunity To Criminal Prosecution, Talon R. Hurst

Talon R Hurst

“Stand Your Ground” laws have received a plethora of media attention in 2012, none of which have been in a positive light. These laws providing a person with immunity from criminal prosecution are now being scrutinized for their confusing nature. “Stand Your Ground” laws allow a person to stand his or her ground and meet force with force, including deadly force, when specific requirements are met. These laws intend for law-abiding citizens to protect themselves and others without fear of being criminally prosecuted. However, they often don not provide consistent guidelines to enforce and apply the immunity. Therefore, two persons …

Error In Persona Vel In Objecto And Aberratio Ictus Vel Impitus: A Transferred Malice?, Khalid Ghanayim

Khalid Ghanayim

No abstract provided.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

Slow Acid Drips And Evidentiary Nightmares: Smoothing Out The Rough Justice Of Child Pornography Restitution With A Presumed Damages Theory, Mary Margaret Giannini

Mary Margaret Giannini

The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson

College of Law - Student Research & Writing Projects

Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about …

Gist In The Mist: What Is The Gist Of The Mail Fraud Statute And Why Should We Care?, C.J. Williams

C.J. Williams

This article explores the origin of the accepted truism that each mailing in furtherance of a scheme to defraud constitutes a separate mail fraud offense, finding it is based upon Supreme Court precedent interpreting a prior, and very different version, of the mail fraud statute. The article examines the language of the current mail fraud statute, compares it to other fraud statutes modeled on the mail fraud statute, and concludes each mailing should not be the unit of prosecution under the current language of the statute. The article discusses the problems that arise from considering each mailing in furtherance of …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

Police Cell Phone Searches: Where's The Privacy, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that will be affected …

Torture Warrants, Necessity, And Self-Defense, Fritz Allhoff

Fritz Allhoff

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense …

Empirical Objections To Torture: A Critical Reply, Fritz Allhoff

Fritz Allhoff

Those who support torture in ticking-time-bomb cases are often criticized as failing to consider empirical objections to torture; however, torture’s critics often wield this charge uncritically, doing little more than throwing out platitudes without considering the role of those platitudes in the dialectic. I agree with the critics that more empirical engagement is owed than is typically on offer, but deny that such engagement vindicates their position. This essay therefore considers various stock objections to the actual use of torture, while ultimately arguing that those objections fail to undermine the use of torture in exceptional cases. In particular, we will …

Criminal Forfeiture Procedure In 2012: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is an annual review of the case law regarding asset forfeiture in federal criminal cases. It discusses the permissible scope of a forfeiture order, and then takes the reader through each step in the forfeiture process from seizure and restraint to indictment, trial or plea, sentencing, and the ancillary proceeding which the rights and interests of third parties are resolved.

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Watching The Watchers: The Growing Privatization Of Criminal Law And The Need For Limits On Neighborhood Watch Associations, Sharon Finegan

Sharon Finegan

On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida when he spotted Trayvon Martin, a 17-year-old African-American high school student, walking through the neighborhood. Zimmerman called 911 and indicated that he was following "a real suspicious guy." Zimmerman then disregarded the police dispatcher's request that he discontinue following Martin and approached the teenager. In the resulting confrontation, Zimmerman used his legally-owned semi-automatic handgun to shoot and kill Martin. Martin had been returning from a local convenience store to his father's fiancée's house, where he was spending …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Mohammad Ghaelian

John Ghaelian

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child’s school board.

This article begins by chronicling the …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Mohammad Ghaelian

John Ghaelian

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child’s school board.

This article begins by chronicling the …

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.