Criminal Law Commons^™

What Is Wrong With Sex In Authority Relations? A Study In Law And Social Theory, Galia Schneebaum

Journal of Criminal Law and Criminology

Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws …

Forward: The Past And Future Of Guns, James Lindgren

Journal of Criminal Law and Criminology

No abstract provided.

Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform, Cristina Law

Journal of Criminal Law and Criminology

Prisoners face many barriers when petitioning for federal habeas corpus relief, especially when asserting ineffective assistance of trial counsel claims. The Supreme Court’s decision in Trevino v. Thaler attempted to lower these barriers by carving out a narrow exception to the procedural default rule. Although a step in the right direction, this narrow exception fell short of meaningful habeas corpus reform. This Comment argues that although the Supreme Court’s decision in Trevino appears to guarantee habeas corpus petitioners the ability to raise ineffective assistance of trial counsel claims in federal court, it is unlikely to provide prisoners meaningful opportunities to …

Some Sources Of Crime Guns In Chicago: Dirty Dealers, Straw Purchasers, And Traffickers, Philip J Cook, Richard J. Harris, Jens Ludwig, Harold A. Pollack

Journal of Criminal Law and Criminology

No abstract provided.

Paternal Incarceration And Adolescent Well-Being: Life Course Contingencies And Other Moderators, Raymond R. Swisher, Unique R. Shaw-Smith

Journal of Criminal Law and Criminology

No abstract provided.

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

Journal of Criminal Law and Criminology

No abstract provided.

Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care, Sarah Halbach

Journal of Criminal Law and Criminology

This Comment looks closely at the reasoning behind two recent federal court opinions granting transgender prisoners access to hormone therapy and sex-reassignment surgery. Although both opinions were decided under the Eighth Amendment’s ban on cruel and unusual punishment, which does not expressly prohibit discrimination based on gender identity, a careful look at the courts’ reasoning suggests that they were influenced by the apparent discrimination against the transgender plaintiffs. This Comment argues that future transgender prisoners may be able to develop an antidiscrimination doctrine within the Eighth Amendment by framing their Eighth Amendment medical claims in terms of discrimination based on …

Maternal And Paternal Imprisonment And Children's Social Exclusion In Young Adulthood, Holly Foster, John Hagan

Journal of Criminal Law and Criminology

The United States has entered its fourth decade of high imprisonment levels. It is now possible to assess the impact of parental imprisonment on children who have completed the transition to adulthood. We elaborate the role of parental incarceration from a life course perspective on intergenerational social exclusion in young adulthood. The National Longitudinal Study of Adolescent Health [Add Health] representatively sampled the historically unique national cohort born in the 1980s, during the onset of mass incarceration. Four waves of the Add Health survey provide a valuable moving window on incarcerated parents and the transitions of their children from adolescence, …

The Psychology Of Workplace Deviant & Criminal Behavior, William Brice, Deborah E. Rupp

Journal of Criminal Law and Criminology

The 2013 book Deviant and Criminal Behavior in the Workplace addresses the psychological constructs, situations, and environments underlying active counterproductive workplace behaviors. Building on a diverse range of psychological findings, this book highlights that the field of criminology needs to expand outside of the realm of violence and instead look at how deviant workplace behaviors can tie into—and motivate—other types of crime.

Estimating The Prevalence Of Entrapment In Post-9/11 Terrorism Cases, Jesse J. Norris, Hanna Grol-Prokopczyk

Journal of Criminal Law and Criminology

How many of the terrorism convictions since September 11, 2001 have been the product of entrapment? Some scholars and journalists have suggested that the number is quite high. One report went so far as to claim that only 1% of terrorism prosecutions involve “real” terrorism. The government’s defenders, at the opposite extreme, come close to saying that entrapment in a terrorism case is a contradiction in terms.

Little empirical basis exists for evaluating these competing claims. Existing literature on terrorism and entrapment is typically based on detailed discussions of a few egregious cases, rather than systematic analysis of the phenomenon. …

Prosecutors And Victims: Why Wrongful Convictions Matter, Jeanne Bishop, Mark Osler

Journal of Criminal Law and Criminology

Often, discussions of wrongful convictions focus almost entirely on the wrongfully convicted and ignore two important constituencies: prosecutors and crime victims. Both constituencies have unique connections to wrongful convictions and should be recognized as potentially powerful allies for change. Prosecutors are deeply committed to justice and to the outcomes of their cases; they can help identify and correct wrongful convictions and introduce policies to avoid wrongful convictions in the first place. Wrongful convictions matter to crime victims because convicting the wrong person leaves the real perpetrator free to commit more crimes, creates a new, innocent victim, and drains resources that …

The Chronic Failure To Discipline Prosecutors For Misconduct: Proposals For Reform, Thomas P. Sullivan, Maurice Possley

Journal of Criminal Law and Criminology

While most prosecutors adhere to the maxim that their primary task is to obtain just results, there are some who violate their ethical responsibilities in order to rack up convictions. This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with …

Lawful Or Fair? How Cops And Laypeople Perceive Good Policing, Tracey L. Meares, Tom R. Tyler, Jacob Gardener

Journal of Criminal Law and Criminology

Legal authorities and the public live in two separate worlds. One world is suffused with law, and the other world is suffused with people’s lived experiences that support their evaluations of fairness. When legal authorities consider whether police policies and practices are desirable, a framework regarding the lawfulness of the relevant policies and practices dominates the conversation. Police departments, their policies, and police officers’ actions are viewed as right or wrong with reference to constitutional standards, as interpreted by prosecutors, judges, and other legal actors. In contrast, we argue that the public is generally insensitive to the question of whether …

To Be Judged By Twelve Or Carried By Six? Quasi-Involuntariness And The Criminal Prosecution Of Service Members For The Use Of Force In Combat - A Grunt's Perspective, Lupe Laguna

Journal of Criminal Law and Criminology

Post-9/11 conflicts have altered the way that the United States of America and her allies fight wars. Over the last ten years military commanders have embraced counterinsurgency doctrine as the path to victory in the War on Terror. As they have done so, commanders have been faced with the difficult task of balancing the need to protect local civilian populations with the need to proactively target insurgent fighters. To accomplish this mission, the military has adopted rules of engagement that allow a service member to engage a target when he or she perceives that the target exhibits “hostile intent.” The …

Sentencing And Interbranch Dialogue, Eric S. Fish

Journal of Criminal Law and Criminology

American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this …

Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin

Journal of Criminal Law and Criminology

Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …

Symposium On The Center On Wrongful Convictions: Foreward, Karen L. Daniel

Journal of Criminal Law and Criminology

No abstract provided.

An Ideological Odyssey: Evolution Of A Reformer, Rob Warden

Journal of Criminal Law and Criminology

No abstract provided.

Remembering Disputed Sexual Encounters: A New Frontier For Witness Memory Research, Deborah Davis, Elizabeth F. Loftus

Journal of Criminal Law and Criminology

This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists.

The Unindicted Co-Ejaculator And Necrophilia: Addressing Prosecutors' Logic-Defying Responses To Exculpatory Dna Results, Jacqueline Mcmurtrie

Journal of Criminal Law and Criminology

This article addresses a prosecutor’s development of new and bizarre theories, particularly in cases involving confession evidence, to explain away exculpatory DNA results. In Juan Rivera’s case, the prosecutor’s theory for why sperm found inside the 11-year-old victim on the day she was murdered did not belong to Rivera was that she had sex with someone before Rivera came along and raped (but did not ejaculate) and murdered her. The unnamed-lover theory is used so often by prosecutors that it has a moniker: “the unindicted co-ejaculator.” In the case of the Dixmoor Five, teenagers convicted of the rape and murder …

Who Could It Be Now? Challenging The Reliability Of First Time In-Court Identifications After State V. Henderson And State V. Lawson, Aliza B. Kaplan, Janis C. Puracal

Journal of Criminal Law and Criminology

Despite the recent advances in assessing the reliability of eyewitness identifications, the focus to date has largely been identifications made pretrial. Little has been written about identifications made for the first time in the courtroom. While in-court identifications have an extraordinarily powerful effect on juries, all such identifications are potentially vulnerable to post-event memory distortion and decay. Absent an identification procedure that effectively tests the witness’s memory, it is impossible to know if the witness’s identification of the defendant is a product of his or her original memory or a product of the extraordinarily suggestive circumstances created by the in-court …

Missing The Mark: Gun Control Is Not The Cure For What Ails The U.S. Mental Health System, Carolyn Reinach Wolf, Jamie A. Rosen

Journal of Criminal Law and Criminology

No abstract provided.

The Current And Future State Of Gun Policy In The United States, William J. Vizzard

Journal of Criminal Law and Criminology

No abstract provided.

Accentuating The Positive Or Eliminating The Negative? Paternal Incarceration And Caregiver-Child Relationship Quality, Sara Wakefield

Journal of Criminal Law and Criminology

No abstract provided.

Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control, Joshua D. Freilich, Graeme R. Newman

Journal of Criminal Law and Criminology

This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal …

Correctional Education Can Make A Greater Impact On Recidivism By Supporting Adult Inmates With Learning Disabilities, Angela Koo

Journal of Criminal Law and Criminology

This Comment brings attention to a group that is overlooked within our prisons—adult inmates with learning disabilities. These inmates currently face challenges in receiving appropriate educational programming. Recognizing that several studies support the proposition that education reduces recidivism, this Comment argues that correctional education programs must make reforms to accommodate adult inmates with learning disabilities in order for education to fully impact recidivism rates.

Reasonable Doubt And Moral Elements, Youngjae Lee

Journal of Criminal Law and Criminology

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …

Swift, Certain, And Fair Punishment: 24/7 Sobriety And Hope: Creative Approaches To Alcohol- And Illicit Drug-Using Offenders, Paul J. Larkin Jr.

Journal of Criminal Law and Criminology

Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs—the 24/7 Sobriety program in South Dakota and Hawaii’s Opportunity Probation with Enforcement—subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and …

Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die, Meredith Martin Rountree

Journal of Criminal Law and Criminology

In the United States, different people have different rights to die. This Article traces the origins of death-sentenced prisoners’ ability to enlist assistance in dying and compares it to the considerably more circumscribed right held by people with serious illness. It uses empirical research on “volunteers,” death-sentenced prisoners who sought execution, to argue that the legal standard for adjudicating their requests to hasten execution should be changed. Empirical evidence suggests many of the concerns governing the regulation of assisted dying in the medical context are present in the death row case. This Article therefore urges courts to use a balancing …

The Sound Of Silence: Evidentiary Analyses Of Precustodial Silence In Light Of Salinas V. Texas, Lukas Mansour

Journal of Criminal Law and Criminology

In the recent Supreme Court case Salinas v. Texas, the Court declined to answer whether precustodial silence should be admissible as evidence of a defendant’s guilt. This Comment uses the case as an example from which it argues that courts should take a different approach to precustodial silence. Rather than examining a defendant’s precustodial silence from a constitutional perspective, as many courts, including the Supreme Court, have done, this Comment argues that courts would be better served examining this type of silence from an evidentiary perspective instead.