Courts Commons^™

A Quiet War: The Judiciary's Steady And Unspoken Effort To Limit Felony-Murder, Maggie Davis

Arkansas Law Review

On a Wednesday afternoon a sixteen-year-old boy is hanging out after school with four of his friends. He is your average sixteen-year-old; he has a girlfriend who works at Wendy’s, and his current worry is about passing his driving test. He smokes some weed from time to time with his friends, but he has a clean criminal record. After complaining about being broke and deciding they have nothing better to do, the five friends elect to break into a seemingly vacant home in order to steal some items for resale. He is already thinking about what he will buy with …

Decarcerating New York City: Lessons From A Pandemic, Nicole Smith Futrell

Publications and Research

Over the last decade, long before the far-reaching impact of COVID-19, the criminal legal system in New York City was on a meandering path toward decarceration. Set against the national backdrop of declining crime rates and a reckoning with the economic, social, and racial costs of mass criminalization and incarceration, elected officials in New York City and State had finally acknowledged that a shift toward reducing the number of people held in New York City jails was long overdue. Sweeping legislative reforms to bail, discovery, and speedy trial statutes, as well as the planned closure of Rikers Island, the city’s …

Domestic Violence In Criminal Courts: The Larger Implications For Victims, Jason Johnson

Bridges: An Undergraduate Journal of Contemporary Connections

Academics have considered the treatment of domestic violence in Canada inadequate (Bell, Perez, Goodman, & Dutton, 2011) and “…an indicator of society's inattentiveness to violence against women…” (Garner & Maxwell, 2009, p. 44). Van Wormer (2009) further notes that there is still “…widespread dissatisfaction by battered women … and their advocates with the current system…” (p. 107). While much of the literature focuses on early aspects of the criminal justice system (police action, decision to prosecute, for e.g.), few authors have sought to understand victims opinions about the trial process (Hare, 2010; Smith, 2001). This paper conducts a literature review …

Criminal Law And Procedure, Brittany A. Dunn-Pirio, Timothy J. Huffstutter, Sharon M. Carr, Mason D. Williams

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

“Don’T Move”: Redefining “Physical Restraint” In Light Of A United States Circuit Court Divide, Julia Knitter

Seattle University Law Review

To reduce sentencing disparities and clarify the application of the sentencing guide to the physical restraint enhancement for a robbery conviction, this Comment argues that the United States Sentencing Commission (USSC) must amend the USSC Guidelines Manual to provide federal courts with a clearer and more concise definition of physical restraint. Additionally, although there are many state-level sentencing systems throughout the United States, this Comment only focuses on the federal sentencing guidelines for robbery because of the disparate way in which these guidelines are applied from circuit to circuit.

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

No Path To Redemption: Evaluating Texas’S Practice Of Sentencing Kids To De Facto Life Without Parole In Adult Prison, Lindsey Linder, Justin Martinez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

It Is Time To Get Back To Basics On The Border, Donna Coltharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

The Pandemic Juror, Melanie D. Wilson

Washington and Lee Law Review Online

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz

St. Mary's Law Journal

Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn

Loyola of Los Angeles Law Review

No abstract provided.

United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses, Daeja Pemberton

Texas A&M Law Review

The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify …

The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson

University of Miami Law Review

As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States—the Eleventh Circuit reviews several claims each year related to capital punishment. Florida is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.

This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the …

Exactly What They Asked For: Linking Harm And Intent In Wire Fraud Prosecutions, Christina M. Frohock, Marcos Daniel Jiménez

University of Miami Law Review

Recent opinions have obscured the U.S. Court of Appeals for the Eleventh Circuit’s guidance on federal criminal fraud prosecutions. In 2016, the court decided United States v. Takhalov and found no crime of wire fraud where the alleged victims received the benefit of their bargain. Just three years later, the concurring opinion in United States v. Feldman criticized that prior reasoning as puzzling, inviting problematic interpretations that become untethered from the common law of fraud. This Article tracks the development of the court’s view and argues for an interpretation of Takhalov that links harm to the specific intent necessary for …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae C. Quinn, Grace R. Mclaughlin

Washington and Lee Journal of Civil Rights and Social Justice

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Washington and Lee Law Review Online

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

Digital Court Records Access: Social Justice And Judicial Balancing, Peter J. Guffin

Maine Law Review

With its transition from paper to electronic records, the state court system in Maine is entering new, uncharted territory. In drafting rules regarding public access to electronic court records, a critical issue facing the court system is how to go about balancing the privacy interests of the individual and the state’s interest in providing transparency about the court’s operations. Both interests are important in our democracy, and it is critical that we take measures to preserve both. The purpose of writing this essay is to show that Judge Coffin’s judicial philosophy and rights-sensitive balancing process, although the product of a …

Prosecutors And Police: An Unholy Union, Maybell Romero

University of Richmond Law Review

This Article argues that, with the once-unheard-of step of prosecutors and police unionizing together in St. Louis, and with relationships between prosecutors and police trending toward growing closer all the time, government at all levels—federal, state, and local—should consider the potential risks of such relationships. Part I explores different types of relationships that go beyond what was once the traditional working relationship between police and prosecutors, including formalized labor unions, employee association groups, friendships, and even marriages. Part II discusses the varying conflicts and deleterious effects that such close relationships cause, unduly influencing investigation priorities and other policies. Part III …

Retroactive Justice: Toward Fundamental Fairness In Resentencing Crack Cocaine Offenders Under Section 404 Of The First Step Act, Daniel P. Peyton

University of Richmond Law Review

In analyzing these four methods, this Comment argues that Method IV best serves fundamental fairness in sentencing, in congruence with the purpose of the First Step Act. To resolve its arbitrary implementation, section 404 must be amended to require a full plenary resentencing in accordance with all updated sentencing guidelines and caselaw in effect at the time of the resentencing. This was the approach taken by the court in resentencing Mr. Rhines to time served. While the Supreme Court could rule Method IV is the correct interpretation of the statute, Congress is the more appropriate actor and should capitalize on …

Lessons Learned, Lessons Offered: Creating A Domestic Violence Drug Court, Judge Rosie Speedlin Gonzalez, Dr. Stacy Speedlin Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

State V. Violette: Harsher Resentencing Encounters A Bolder Resumption Of Vindictiveness, Thomas C. Bradley

Maine Law Review

Twenty-one years ago, in Weeks v. State, the Maine Supreme Judicial Court, sitting as the Law Court, adopted a rule to prevent judicial vindictiveness when resentencing defendants who had successfully appealed their conviction and been reconvicted. The Weeks court adopted as a state due process protection the United States Supreme Court's rule laid down the preceding year in North Carolina v. Pearce. The Pearce rule provides that harsher resentencing of such defendants creates a presumption of constitutionally prohibited vindictiveness unless the harsher sentence is explicitly based on some identifiable misconduct by the defendant since the prior sentencing. Thus, the Law …