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Articles 1 - 30 of 32
Full-Text Articles in Criminal Law
Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack
Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack
Northwestern Journal of Technology and Intellectual Property
This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …
Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace
Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace
Northwestern University Law Review
Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …
Identifying The Most Democratic Institution To Lead Criminal Justice Reform, Harry B. Dodsworth
Identifying The Most Democratic Institution To Lead Criminal Justice Reform, Harry B. Dodsworth
Northwestern University Law Review
American criminal justice is in crisis, and most scholars agree why: unduly severe laws, mass incarceration, and disproportionate effects on minority groups. But they don’t agree on a solution. One group of scholars—known as the “democratizers”—thinks the answer is to make the criminal justice system more democratic. According to democratizers, layperson participation and local democratic control will impart sensibility into criminal justice reform. In short, a transfer of power away from distant lawmakers and toward local communities, which would craft their own criminal codes and elect their own prosecutors. This argument assumes that more local means more democratic—but what if …
Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes
Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes
Northwestern University Law Review
The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.
This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation …
With Unanimity And Justice For All: The Case For Retroactive Application Of The Unanimous Jury Verdict Requirement, Kara Kurland
With Unanimity And Justice For All: The Case For Retroactive Application Of The Unanimous Jury Verdict Requirement, Kara Kurland
Northwestern Journal of Law & Social Policy
Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury …
The Second Amendment In A Carceral State, Alice Ristroph
The Second Amendment In A Carceral State, Alice Ristroph
Northwestern University Law Review
No abstract provided.
The State's Monopoly Of Force And The Right To Bear Arms, Robert Leider
The State's Monopoly Of Force And The Right To Bear Arms, Robert Leider
Northwestern University Law Review
No abstract provided.
Death-By-Incarceration In Illinois, Joseph Dole
Death-By-Incarceration In Illinois, Joseph Dole
Northwestern Journal of Law & Social Policy
No abstract provided.
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Northwestern Journal of Law & Social Policy
Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …
American Law Enforcement Responses To Covid-19, Matthew B. Kugler, Mariana Oliver, Jonathan Chu, Nathan R. Lee
American Law Enforcement Responses To Covid-19, Matthew B. Kugler, Mariana Oliver, Jonathan Chu, Nathan R. Lee
JCLC Online
No abstract provided.
State Courts Must Combat Mass Incarceration By Granting Broader Retroactivity To New Rules Than Is Provided Under The Federal Teague V. Lane Test, Jamila Johnson, Talia Macmath
State Courts Must Combat Mass Incarceration By Granting Broader Retroactivity To New Rules Than Is Provided Under The Federal Teague V. Lane Test, Jamila Johnson, Talia Macmath
JCLC Online
No abstract provided.
Where Should We Land?: Flyover Districts As Proper Venue For Crimes Committed In Air On Domestic Flights, Megan E. Mccarthy
Where Should We Land?: Flyover Districts As Proper Venue For Crimes Committed In Air On Domestic Flights, Megan E. Mccarthy
JCLC Online
This Essay explores the recently resolved circuit split between the Ninth, Tenth, and Eleventh Circuits regarding the proper venue for crimes committed on an airplane during flight. In 2019, the Ninth Circuit held that the proper venue for trying an assault that happened midflight was the district over which the airplane was flying when the assault occurred. While flyover districts may seem like a surprising and inconvenient choice for venue, flyover districts are the only constitutionally proper venue for point-in-time offenses that occur on airplanes during flight. Furthermore, using current aviation tracking protocols and GPS technology, courts can pinpoint the …
Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania
Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania
Northwestern University Law Review
The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is …
Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg
Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg
Journal of Criminal Law and Criminology
“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”
Dr. Maya Angelou
When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …
"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance
"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance
Journal of Criminal Law and Criminology
Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …
Rethinking Reverse Location Search Warrants, Mohit Rathi
Rethinking Reverse Location Search Warrants, Mohit Rathi
Journal of Criminal Law and Criminology
The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of …
The Corporate Insanity Defense, Mihailis E. Diamantis
The Corporate Insanity Defense, Mihailis E. Diamantis
Journal of Criminal Law and Criminology
Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where …
Criminalizing China, Margaret K. Lewis
Criminalizing China, Margaret K. Lewis
Journal of Criminal Law and Criminology
The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.
People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.
This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella …
The Specific Deterrent Effects Of Criminal Sanctions For Intimate Partner Violence: A Meta-Analysis, Joel H. Garner, Christopher D. Maxwell, Jina Lee
The Specific Deterrent Effects Of Criminal Sanctions For Intimate Partner Violence: A Meta-Analysis, Joel H. Garner, Christopher D. Maxwell, Jina Lee
Journal of Criminal Law and Criminology
A dozen systematic reviews published since 1978 have sought to clarify the complexities of deterrence theory. These reviews emphasize the general deterrent effects of police presence, arrest, and incarceration on rates of homicide and other serious crimes, such as assault, rape, and burglary. These reviews provide less attention to specific deterrence processes and to the deterrent impacts of intermediate sanctions, such as prosecution or conviction; none of these reviews incorporate any of the research on criminal sanctions for intimate partner violence. To address these limitations, this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal …
Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, And Violence Against Women In Indian Country, Joseph Mantegani
Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, And Violence Against Women In Indian Country, Joseph Mantegani
Journal of Criminal Law and Criminology
Native American women face rates of sexual violence far beyond those experienced by any other race. But when those women live on reservations, their own tribes are restricted in their authority to protect their members. A maze of criminal jurisdiction overlies Indian country, one that depends on the location of the crime, the agreements a particular tribe has with local or federal authorities, the applicable federal jurisdictional statutes, and the offender’s race.
Since Oliphant v. Suquamish Indian Tribe in 1978, tribes have not had criminal jurisdiction over non-Indians who commit crimes on their reservations. Rather, tribes must rely on state …
Capital Felony Merger, William M. Berry Iii
Capital Felony Merger, William M. Berry Iii
Journal of Criminal Law and Criminology
Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” …
Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring
Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring
Journal of Criminal Law and Criminology
In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several …
Toward A More Perfect Trial: Amending Federal Rules Of Evidence 106 And 803 To Complete The Rule Of Completeness, Louisa M. A. Heiny, Emily Nuvan
Toward A More Perfect Trial: Amending Federal Rules Of Evidence 106 And 803 To Complete The Rule Of Completeness, Louisa M. A. Heiny, Emily Nuvan
Journal of Criminal Law and Criminology
The common law Rule of Completeness was designed to prevent parties from introducing incomplete—and thereby misleading—statements at trial. It ensured fundamental fairness by ensuring that a fact finder heard an entire statement or series of statements if the whole would “complete” the partial evidence presented. It served this important role in Anglo-American jurisprudence for centuries before the drafters of Federal Rule of Evidence 106 attempted to capture its essence in 1975. Unfortunately, what was once a simple and principled rule has been muddled by Federal Rule of Evidence 106 (FRE 106). The common law rule language was lost when FRE …
Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder
Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder
Journal of Criminal Law and Criminology
Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …
Breonna Taylor: Transforming A Hashtag Into Defunding The Police, Jordan Martin
Breonna Taylor: Transforming A Hashtag Into Defunding The Police, Jordan Martin
Journal of Criminal Law and Criminology
How can modern policing be reformed to address police violence against Black women when it can occur at no fault of their own and end with a shower of bullets in the middle of the night while within the sanctity of their own home? What is accomplished when her name is said but justice is never achieved? What good does it do when her story is subsequently overshadowed or overlooked by the reform movements that intend to correct racism and sexism respectively? This Comment analyzes both Black women’s vulnerability to police violence and their invisibility in reform movements. First, police …
Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu
Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu
Journal of Criminal Law and Criminology
Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes …
Peremptory Challenges: Preserving An Unequal Allocation And The Potential Promise Of Progressive Prosecution, Savanna R. Leak
Peremptory Challenges: Preserving An Unequal Allocation And The Potential Promise Of Progressive Prosecution, Savanna R. Leak
Journal of Criminal Law and Criminology
In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the …
Prison Abolition: From Naïve Idealism To Technological Pragmatism, Mirko Bagaric, Dan Hunter, Jennifer Svilar
Prison Abolition: From Naïve Idealism To Technological Pragmatism, Mirko Bagaric, Dan Hunter, Jennifer Svilar
Journal of Criminal Law and Criminology
The United States is finally recoiling from the mass incarceration crisis that has plagued it for half a century. The world’s largest incarcerator has seen a small drop in prison numbers since 2008. However, the rate of decline is so slow that it would take half a century for incarceration numbers to reduce to historical levels. Further, the drop in prison numbers has occurred against the backdrop of piecemeal reforms, and there is no meaningful, systematic mechanism to reduce incarceration levels. Despite this, there is now, for the first time, a growing public acceptance that prison is a problematic, possibly …
Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby
Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby
Journal of Criminal Law and Criminology
Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.
There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration …
Missing The Misjoinder Mark: Improving Criminal Joinder Of Offenses In Capital-Sentencing Jurisdictions, Milton J. Hernandez Iv
Missing The Misjoinder Mark: Improving Criminal Joinder Of Offenses In Capital-Sentencing Jurisdictions, Milton J. Hernandez Iv
Journal of Criminal Law and Criminology
In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant. Joinder pervades the American criminal justice system, and some jurisdictions see joinder in more than half of their cases. Most states and the federal courts use a liberal joinder system where courts may join offenses regardless of their severity or punishment. These systems derive from judicial efficiency arguments, seeking to avoid unnecessary trials and striving to conserve time, money, and other resources. In a liberal joinder regime, the court may force a defendant to prepare for a trial in …