Law Commons^™

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

William & Mary Law Review

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …

Singapore's Approach To Sex By Deception, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

A vigorous debate about whether sex by deception ought to be considered rape appears tohave caught the imagination of criminal law theorists and commentators in recent years. Thisdebate is by no means devoid of practical implications as shown by case law from variousjurisdictions which have had to grapple with the issue. This article sets out the approach taken inSingapore and suggests that it may offer a practical solution in this contentious area of criminallaw and the understanding of consent.

Conspiracy, Complicity, And The Scope Of Contemplated Crime, Kimberly Ferzan

All Faculty Scholarship

One of the leading casebooks for the first-year Criminal Law course begins the mens rea discussion with Regina v. Cunningham.1 Cunningham, in need of money, decided to rip the gas meter off the residential gas pipe in his soon-to-be basement to steal the shillings inside. That Cunningham was guilty of theft was uncontroversial. The problem was that Cunningham did not turn off the gas, and it seeped into the adjacent home, partially asphyxiating the neighbor, Sarah Wade. Although the case is technically about the interpretation of the word “maliciously” in the Offences against the Person Act, the lesson students are …

Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

All Faculty Scholarship

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

All Faculty Scholarship

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 challenges to …

Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden

Journal of Criminal Law and Criminology

Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to …

Paying For A Clean Record, Amy F. Kimpel

Journal of Criminal Law and Criminology

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the …

Citizen's Arrest And Race, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

For Grand Juries, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

Drug Supervision, Jacob Schuman

Journal Articles

Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …

The Perils Of Private Prosecutions, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.

Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

Gambling On The Blockchain: How The Unlawful Internet Gambling Enforcement Act Has Opened The Door For Offshore Crypto Casinos, Samuel H. Brown Vii

Vanderbilt Journal of Entertainment & Technology Law

Online cryptocurrency casinos have seen a dramatic rise in popularity over the past thirty years as the rate of ownership of cryptocurrencies has risen almost as quickly as the US monetary value of a single Bitcoin. Current US laws and regulations are outdated; the only piece of federal legislation that provides oversight in the area of virtual gambling originated in 2006, more than fifteen years before the publication of this Note. Previous scholarship suggests that a lack of federal action has resulted in a surge of criminal activity, such as money laundering and tax evasion, as well as significant missed …

Against Criminal Law Localism, Brenner M. Fissell

Maryland Law Review

No abstract provided.

Big Brother Is Scanning: The Widespread Implementation Of Alpr Technology In America’S Police Forces, Yash Dattani

Vanderbilt Journal of Entertainment & Technology Law

Automatic License Plate Readers (ALPRs) are an increasingly popular tool in police departments across the United States. At its core, ALPR technology functions in a relatively simple manner. The technology has two major components: the actual scanners, which record license plates, and the databases which collect, compile, and analyze this information for officers to access at the click of a button. Although this technology first came to the United States in 1998 as a form of rudimentary border security, its purpose and capabilities have rapidly grown. Now, in 2022, ALPR has evolved into a frighteningly powerful piece of technology, potentially …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Olinda Moyd, Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Bianca Sukrow, Christoph Konig

Articles in Law Reviews & Other Academic Journals

The inspiration for this Article was the 2021 Conference of the Global Alliance for Justice Education (GAJE), a biannual gathering since 1999 of law educators and others interested in justice education from around the world. Due to the ongoing COVID-19 pandemic, the conference was conducted virtually. During the three-day conference, over 450 participants from 45 countries gathered to participate in the sharing of workshops and presentations, ranging from discussions of papers to five-minute "lightning talks." In addition, there were virtual spaces for social meetings with new and old friends. The authors attended as many of the sessions as possible in …

Building Fierce Empathy, Binny Miller

Articles in Law Reviews & Other Academic Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

Criminal Injustice, Edward Rubin

Vanderbilt Law School Faculty Publications

As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Victims’ Rights Revisited, Benjamin Levin

Publications

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Felon Disenfranchisement: What Federal Courts Got Wrong And How State Courts Can Address It, Lindsay Dreyer

Mitchell Hamline Law Review

No abstract provided.

How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty

Journal of Criminal Law and Criminology

Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich …

Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis

Journal of Criminal Law and Criminology

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …

Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde

Journal of Criminal Law and Criminology

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …

Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder

Journal of Criminal Law and Criminology

When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments …

Rethinking Prison For Non-Violent Gun Possession, Robert Weiss

Journal of Criminal Law and Criminology

Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop …