Criminal Law Commons^™

Judicial Discretion And The Rise Of Individualization: The Canadian Sentencing Approach, Benjamin Berger

Articles & Book Chapters

“Who are courts sentencing if not the offender standing in front of them?”

The epigraph to this paper points to the ethical heart of a distinctive and important development in Canadian sentencing law. It is drawn from a case in which the Supreme Court of Canada grappled with the signal societal trauma wrought by the operation of the criminal justice system – the travesty of Indigenous over-representation in Canadian prisons. This development involves an approach that has already disrupted certain elements of contemporary sentencing practice in Canada, and it is one that, depending on how sentencing judges embrace it, may …

An Examination Of How The Canadian Military's Legal System Responds To Sexual Assault, Elaine Craig

Dalhousie Law Journal

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

Criminalizing Coercive Control Within The Limits Of Due Process, Erin L. Sheley

Faculty Scholarship

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” …

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Rights Should Not Vary Based On Offense Severity, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Some constitutional rights of criminal procedure apply unequally, varying based on offense (or punishment) severity. Of these, some vary proportionally, attaching or strengthening as offense severity increases. For example, the Sixth Amendment guarantees the rights to appointed counsel for indigents and jury trial for defendants charged with any felony but only some misdemeanors. In contrast, other rights are inversely proportional. For example, the strength or applicability of some aspects of the Fourth Amendment right against unreasonable searches and seizures and the Eighth Amendment right against excessive bail decrease as offense severity increases. This Article examines whether such rights should vary …

Invisible Prisons, M. Eve Hanan

Scholarly Works

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney Cross

Scholarly Works

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

All Faculty Scholarship

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the …

Misdemeanors By The Numbers, Sandra G. Mayson, Megan T. Stevenson

All Faculty Scholarship

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, …

Feminist Action Against Pornography In Japan: Unexpected Success In An Unlikely Place, Caroline Norma, Seiya Morita

Dignity: A Journal of Analysis of Exploitation and Violence

In late 2016 a feminist movement against problems of commercial sexual exploitation, and especially issues of coerced pornography filming, arose in Japan. This article describes the history of this movement as it mobilized to combat human rights violations perpetrated by the country’s pornographers. The movement’s success came not spontaneously or haphazardly; in fact, it was orchestrated earlier over a full decade-and-a-half by activists who persevered in researching and highlighting pornography’s harms in a civil environment of hostility, isolation and social derision, even among progressive groups and individuals. The Anti-Pornography and Prostitution Research Group (APP) was particularly prominent in this history. …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Drug Conspiracy Sentencing And Social Injustice, Emilie Kurth

University of Colorado Law Review

The D.C. Circuit in United States v. Stoddard confronted a landmine of criminal and socioeconomic justice issues when it held that mandatory minimum sentences for drug conspiracy offenses should be imposed based on the amount of drugs attributable to the individual defendant (the individualized approach) as opposed to the amount of drugs attributable to the conspiracy as a whole (the conspiracy-wide approach). This decision reflects a nationwide circuit split implicating the courts and lawmakers' ideological balancing of the issues of justice, liberty, public safety, and equity. This Comment discusses Stoddard as well as the circuit split in its current form …

Police Violence And The African-American Procedural Habitus, Trevor George Gardner

Scholarship@WashULaw

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as …

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

Prosecutorial Declination Statements, Jessica A. Roth

Articles

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

Growing Up Behind Bars: Pathways To Desistance For Juvenile Lifers, Laura S. Abrams, Kaylyn Canlione, D. Michael Applegarth

Marquette Law Review

In the wake of the landmark Supreme Court decision Miller vs. Alabama, a variety of state laws have paved the way for the resentencing and potential release of “juvenile lifers.” Desistance theories pertaining to youth with histories of violent offending suggest that a blend of maturation, internal motivation and identity shifts, and opportunities to adopt and fulfill adult roles will lead to cessation of criminal behavior. Yet, these theories may not apply to young people serving life sentences, as they have limited opportunity to adopt adult responsibilities while imprisoned, less motivation to desist if freedom is not viewed as attainable …

The Impact Of Incarceration On The Risk Of Violent Recidivism, Jennifer E. Copp

Marquette Law Review

Whether incarceration heightens an individual’s likelihood of recidivating is at the center of prison policy discussions. Yet rigorous empirical studies on the nature of the incarceration—recidivism link are limited. As a whole, existing research suggests that the effect of imprisonment, relative to noncustodial sanctions, is either null or slightly criminogenic. These findings call into question the ability of prisons to exert a specific deterrent effect. They also suggest that prisons are failing to address the underlying causes of recidivism among inmate populations. An important consideration, however, is the extent to which the effects of imprisonment are heterogeneous. The current discussion …

Violence Risk Assessment: Current Status And Contemporary Issues, Sarah L. Desmarais, Samantha A. Zottola

Marquette Law Review

Despite the increased use of violence risk assessment instruments in the criminal justice system, they remain the topic of continued discussion and debate. This Article will discuss the state of science and practice as it relates to assessing risk for violent recidivism, highlighting current issues of concern and empirical investigation. We first provide an overview of violence risk assessment and describe the role of violence risk assessments instruments in this process. We then discuss their current status in science and practice, including the accuracy with which violence risk assessment instruments forecast violent recidivism, their impact on criminal justice decisions, and …

Preventing Sexual Violence: Alternatives To Worrying About Recidivism, Eric S. Janus

Marquette Law Review

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Violent Crime And Media Coverage In One City: A Statistical Snapshot, Michael O'Hear

Marquette Law Review

Many commentators have argued that high levels of public fear and anger regarding violent crime result, at least in part, from distorted coverage of crime in the news media. Among other distortions, it is said that the news media devote greatly disproportionate coverage to the most outrageous instances of violent crime, and that the media fail to provide information that would helpfully contextualize the offenses or humanize the perpetrators. In order to test these latter claims, crime stories from a daily newspaper and an Internet news site in one mid-sized city were collected for one year. As expected, in comparison …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

What’S Wrong With Police Unions?, Benjamin Levin

Scholarship@WashULaw

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Criminal Law In Crisis, Benjamin Levin

Scholarship@WashULaw

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 …

Factually Baseless Enforcement Of Criminal Law Is Okay. Full Enforcement Is Not., Darryl K. Brown

Marquette Law Review

none.

Criminal Law, John A. Regan

Mercer Law Review

This Article reviews some of the most important opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2018 up until May 31, 2019, as well as legislation adopted by the Georgia General Assembly during the 2019 Session.1 This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes and serves as a broad guideline to how these decisions will affect their practices.

The Distraction That Is Stand Your Ground, Katryna Santa Cruz

FIU Law Review

No abstract provided.

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

Publications

No abstract provided.

The Troubling Alliance Between Feminism And Policing, Aya Gruber

Publications

No abstract provided.

#Metoo And Mass Incarceration, Aya Gruber

Publications

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime …

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.