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 …

The Zombie Pandemic In Florida, Anita A. Digiacomo Esq.

Anita A. DiGiacomo

A zombie is currently defined as “an animated corpse that feeds on living human flesh.” The Centers for Disease Control and Prevention contend that zombies are typically “created by an infectious virus, which is passed on via bites and contact with bodily fluids.” The vehicle for the spread of infection will depend on the nature of the virus that causes the zombie outbreak. However, due to the nature of zombies, it is more than likely that the main mode of transferring the virus, will be through bites or scratches. The zombie body consists of the reanimated human body, and as …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

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 …

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 …

Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin

Brittani N. Baldwin

No abstract provided.

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

“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 …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

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

Khalid Ghanayim

No abstract provided.

Race And The Death Penalty: An Empirical Assessment Of First Degree Murder Convictions In Tennessee After Gregg V. Georgia, John M. Scheb Ii, Hemant K. Sharma, David J. Houston, Kristin Wagers

John M Scheb II

We analyze over 1,000 first-degree murder convictions in the state of Tennessee from 1977 through 2007 to determine if either “race-of-defendant” or “race-of-victim” effects are present when it comes to the application of capital punishment. We control for numerous factors related to the demographics of offender and victim, as well as the circumstances of the crime itself and the availability of evidence. Our primary findings note that prosecutors are more likely to seek a death sentence when a victim is white, but we also find that juries are not affected by the race of the victim. We also find no …

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.

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

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 …

Chinese Homicide Law, Irrationality And Incremental Change, Michael Vitiello

Michael Vitiello

Abstract: Chinese Homicide Law, Irrationality and Incremental Change This article begins with a striking hypothetical: “Having learned that his wife was having an affair, the defendant mulled over his options. After deliberation, he decided to shoot her and her lover. Sneaking up on them as they sat together in an isolated area, the defendant shot each in the chest. Because they were far from the nearest city, they received no first aid and both bled to death. Charged with first degree murder, the defendant has asked you to represent him. In your first interview, the defendant explains that he did …

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 …

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

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 …

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 …

A Shot In Arm: Can Chemical Castration Statutes Cure Sex Offenders Legally And Ethically?, Robert Watters

Robert Watters

At least seven states currently have sex offender castration statutes. This article examines the legal and ethical appropriateness of those statutes against the successful and unsuccessful European models.

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 …

Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan

Richard O. Morgan

The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …

Restorative Justice In The Gilded Age: Shared Principles Underlying Two Movements In Criminal Justice, Ali M. Abid

Ali M Abid

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes. The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional …

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 …