Open Access. Powered by Scholars. Published by Universities.®

Criminal Procedure Commons

Open Access. Powered by Scholars. Published by Universities.®

3,942 Full-Text Articles 2,594 Authors 1,171,714 Downloads 115 Institutions

All Articles in Criminal Procedure

Faceted Search

3,942 full-text articles. Page 1 of 68.

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Esq. 2016 Streetwise and Safe

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Esq.

Brendan M. Conner

The accompanying Article provides the first critical analysis of safe harbor laws, which rely on custodial arrests to prosecute or divert youth arrested for or charged with prostitution related offenses under criminal or juvenile codes to court supervision under state child welfare, foster care, or dependency statutes. This subject is a matter of intense debate nationwide, and on January 27, 2015 the House of Representatives passed legislation that would give preferential consideration for federal grants to states that have enacted a law that “discourages the charging or prosecution” of a trafficked minor and encourages court-ordered treatment and institutionalization. Nearly universally ...


Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan 2015 Willamette University

Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan

Lee N Gilgan

This study would add to available research regarding recidivism rates following incarceration in private prisons in contrast to incarceration in government-run prisons. This is a non-experimental meta-analysis viewing numerous studies discussing the effects of multiple covariants within public and private prisons. Based on the information and conclusion in these studies, we find that there is little overall consensus concerning the effects of increased privatization on recidivism. While many studies find certain aspects of privatization to have some potential effect on recidivism, there are many other aspects that either are out of scope or have a negative effect on recidivism. However ...


Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. MacLean, James J. Berles 2015 Indiana Tech Law School

Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles

Adam Lamparello

Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable.Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although ...


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow 2015 Martin Luther Universitat Halle-Wittenberg

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

There is a new neoliberal penality emerging in the United States with four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these pillars, but the pillars are not limited to the prison-industrial complex.

Foucault's concept of the prison as an institution primarily of individual normalization presupposes rehabilitation as the primary goal of the institution. This is no longer the case. Rather, the "penal culture" has shifted from one that views crime and imprisonment ...


O'Connor's Firsts, Phyllis Crocker 2015 University of Akron

O'Connor's Firsts, Phyllis Crocker

Akron Law Review

No abstract provided.


Acquittals In Mugenzi & Mugiraneza V. Prosecutor Contribute To The Weak Legacy Of The International Criminal Tribunal For Rwanda, Alison Agnew 2015 Boston College Law School

Acquittals In Mugenzi & Mugiraneza V. Prosecutor Contribute To The Weak Legacy Of The International Criminal Tribunal For Rwanda, Alison Agnew

Boston College International and Comparative Law Review

In 2011, the Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) found Justin Mugenzi and Prosper Mugiraneza guilty of conspiracy to commit genocide and direct and public incitement to commit genocide due to their roles in the removal and replacement of Jean-Baptiste Habyalimana as prefect of Butare in April 1994. In February 2013, the Appeals Chamber reversed these convictions and acquitted Mugenzi and Mugiraneza, determining that the appellants did not possess the requisite mens rea and genocidal intent. The ICTR’s goal is to bring justice and reconciliation to Rwanda, but these acquittals demonstrate its institutional weakness. The ...


The Line Holds, But Death May Matter: The Supreme Court's Criminal Procedure Decisions Of The 2001 Term, William Hellerstein 2015 Touro College Jacob D. Fuchsberg Law Center

The Line Holds, But Death May Matter: The Supreme Court's Criminal Procedure Decisions Of The 2001 Term, William Hellerstein

Touro Law Review

No abstract provided.


Reconsidering Federal And State Obstacles To Human Trafficking Victim Status And Entitlements, Amanda J. Peters 2015 South Texas College of Law

Reconsidering Federal And State Obstacles To Human Trafficking Victim Status And Entitlements, Amanda J. Peters

Amanda J Peters

Federal and state anti-trafficking laws describe the victim in the process of criminalizing the act of human trafficking. Nearly half of all states adopt the federal definition of victim, which requires proof of forced, defrauded or coerced labor, whereas the other half narrows this definition thereby limiting the number of victims qualifying for state victims services. Using this definition, victims must prove their status before they can access victim entitlements. Even when victims prove their status, they may be denied traditional crime victim benefits like restitution and Crime Victim Compensation funds. In this way, their victim status may be rendered ...


Deconstructing Infanticide, Eric Vallillee 2015 University of Ottawa

Deconstructing Infanticide, Eric Vallillee

Western Journal of Legal Studies

The offence of infanticide is allegedly based in debunked and sexist ideas about women and pregnancy. This article demonstrates that this offence is both necessary and beneficial regardless of its alleged basis. This article outlines the elements of infanticide and examines the legislative history from Medieval England to its adoption in Canada before discussing contemporary discourses on infanticide with a particular focus on the application of modern medical science. This work argues there are two issues with the current offence: (1) the requirement of a “disturbed mind” in the accused resulting from childbirth or lactation; and (2) the lack of ...


Why There Should Be No Constitutional Right To Contact Counsel From A Police Car, Terry Skolnik 2015 University of Toronto, Faculty of Law

Why There Should Be No Constitutional Right To Contact Counsel From A Police Car, Terry Skolnik

Western Journal of Legal Studies

The Supreme Court of Canada has yet to consider whether there is a constitutional right to use a cell phone to contact legal counsel while detained in a police car. This article argues that it should not be recognized as a constitutional right for three principal reasons. First, recent judicial interpretations of the constitutional right to counsel have foreclosed the possibility of detained and arrested persons using their own cell phones to call a lawyer from a police car. Second, allowing detainees to use their cell phones to contact counsel can create unreasonable risks to public safety and undermine the ...


R V Fearon Case Commentary, Western Journal of Legal Studies Editorial Board 2015 Western University

R V Fearon Case Commentary, Western Journal Of Legal Studies Editorial Board

Western Journal of Legal Studies

The widespread use of smart phones and similar devices for data management has created significant constitutional and criminal law issues. This is evident in the context of protection by the Charter with respect to unreasonable search and seizure. When an individual’s section 8 rights are breached, an assessment of the admissibility of evidence under section 24(2) of the Charter is required. In R v Fearon, the Supreme Court of Canada established new limits on the police power to search cell phones and similar devices incident to arrest. Cromwell J stated that these measures do not “represent the only ...


Castle Doctrine And Cohabitants: A Selective, Annotated Bibliography, Luis deBonoPaula 2015 St. Mary's University School of Law

Castle Doctrine And Cohabitants: A Selective, Annotated Bibliography, Luis Debonopaula

Luis deBonoPaula

No abstract provided.


Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello 2015 Florida State University

Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello

Monica B Carusello

No abstract provided.


The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. McFarlin 2015 Harvard University

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.


Mexico’S Catch-22: How The Necessary Extradition Of Drug Cartel Leaders Undermines Long-Term Criminal Justice Reforms, Walter Rodriguez 2015 Boston College Law School

Mexico’S Catch-22: How The Necessary Extradition Of Drug Cartel Leaders Undermines Long-Term Criminal Justice Reforms, Walter Rodriguez

Boston College International and Comparative Law Review

Grisly cartel violence has plagued Mexico in recent decades, effectively destabilizing its government and encasing its citizenry in trepidation and fear. A joint operation between Mexican Marines and the U.S. Drug Enforcement Administration in February 2014, however, finally penetrated the myth of invulnerability for drug trafficking organizations with the arrest of that world’s most powerful leader, Joaquin “El Chapo” Guzmán. Although this development is evidence of Mexican law enforcement’s newfound ability to track and capture the most dominant of drug bosses, Mexico’s criminal justice system continues to lack the requisite structure, political will, and expertise to ...


Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, Hugh M. Mundy 2015 The John Marshall Law School

Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, Hugh M. Mundy

Boston College Journal of Law & Social Justice

As the number of wrongfully convicted prisoners who are subsequently exonerated continues to rise, the importance of access to post-conviction relief also increases. Under the Illinois Post-Conviction Hearing Act, this access is restricted to petitioners who are currently imprisoned or otherwise facing a restraint on their liberty. Persons convicted of a crime who have completed their sentence are barred from pursuing post-conviction relief under the Act, regardless of the existence of exculpatory evidence that supports their innocence. Removing this procedural roadblock and interpreting the Act broadly to allow any person convicted of a crime to raise a claim of actual ...


The Myth Of The Double-Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno 2015 Fordham University School of Law

The Myth Of The Double-Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Boston College Law Review

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of ...


Jury Sentencing And Juveniles: Eighth Amendment Limits And Sixth Amendment Rights, Sarah French Russell 2015 Quinnipiac University School of Law

Jury Sentencing And Juveniles: Eighth Amendment Limits And Sixth Amendment Rights, Sarah French Russell

Boston College Law Review

Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering ...


Moneyball Sentencing, Dawinder Sidhu 2015 University of New Mexico School of Law

Moneyball Sentencing, Dawinder Sidhu

Boston College Law Review

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for ...


Law Enforcement And Technology: Requiring Technological Shields To Serve And Protect Citizen Rights, Ryan C. Pulley 2015 Emory University

Law Enforcement And Technology: Requiring Technological Shields To Serve And Protect Citizen Rights, Ryan C. Pulley

Ryan C Pulley

An often revisited topic is the tension between law enforcement and the citizens they aim to protect. One side of this discussion seeks to mitigate the tension by explaining the hard decisions that law enforcement officers must make to protect citizens and themselves, while the other emphasizes the corruption that exists within police departments. Recently, this discussion has begun a critical examination of the role of technology within police department to determine whether police officers are properly monitored and trained.

Both citizens and police forces alike should require that law enforcement officers utilize publicly available technologies that protect citizens’ rights ...


Digital Commons powered by bepress