Juvenile Competency Restoration, David R. Katner

Lewis & Clark Law Review

Despite legal competence presumptions about juveniles facing delinquency charges, tens of thousands of forensic mental health evaluations challenge the status of court-involved children in the United States each year. Researchers now find mental health disorders prevalent among juveniles in the justice system, with up to 70% having a diagnosable mental health problem. It is inappropriate to think of adolescents as younger versions of adults whose behaviors can be viewed through the same lens as adult behaviors. The Article will explore some of the causes and conclusions about why many juveniles are not competent and why many of them may not …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal …

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan P. Sturm

Faculty Scholarship

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Terror And Tenderness In Criminal Law, M. Eve Hanan

Scholarly Works

The criminal legal system is at a crossroads. Calls for abolition are met with calls for modest adjustments or maintenance of the status quo. What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices. Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care. In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration—a …

“Cops Or Coaches?” The Statutory Role Of Juvenile Probation Officers In A Transformative Age, Justin Iverson, David S. Tanenhaus

Scholarly Works

For more than a century, juvenile justice proponents have had a difficult time precisely defining the proper role of the juvenile probation officer while simultaneously stressing that the juvenile probation department is the “workhorse” of the entire system. Existing literature largely focuses on which aspects of policing and social work these officers should embody while ignoring the foundational moorings in state statutes. This Article offers both a historical account of the rise of the juvenile probation officer and a thorough analysis of each state’s laws regarding peace officer status, employing authority, the power of arrest, and the power to carry …

Due Process Junior: Competent (Enough) For The Court, Tigan Woolson

Journal of Law and Health

There are many reports presenting expert policy recommendations, and a substantial volume of research supporting them, that detail what should shape and guide statutes for juvenile competency to stand trial. Ohio has adopted provisions consistent with some of these recommendations, which is better protection than relying on case law and the adult statutes, as some states have done. However, the Ohio statute should be considered a work in progress.

Since appeals courts are unlikely to provide meaningful review for the substance of a juvenile competency determination, the need for procedures for ensuring that the determination is initially made in a …

Embracing The End: A Comparative Analysis Of Medical Aid In Dying In Canada And The United States, Joel Krinsky

Brooklyn Journal of International Law

Since the late nineteenth century, debate has unfolded over the use of euthanasia and physician-assisted death to alleviate the suffering of individuals with medical illnesses. The controversy surrounding the issue persists and its implications are significant. While most countries prohibit Aid in Dying (AID), legalization of the practice has expanded globally in recent years. Canada and the United States (US) are two such jurisdictions that have expanded access to AID. Canada has federally legalized the practice, which the country refers to as Medical Aid in Dying (MAID), and in 2021, the country expanded the eligibility criteria for individuals seeking access …

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek

Brooklyn Journal of International Law

For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Navigating Beyond The Lodestar: Borrowing The Federal Sentencing Guidelines To Provide Fee-Shifting Predictability, Matthew Ahn

Dickinson Law Review (2017-Present)

The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards …

Do Crime Prevention Through Environmental Design Strategies Deter Taggers? Voices From The Street, Arthur Vasquez, Nina Barbieri, John J. Rodriguez

Qualitative Criminology (QC)

"Crime Prevention Through Environmental Design (CPTED) postulates that jurisdictions can deter crime and antisocial behavior via effective use and proper design of the physical environment. When a jurisdiction implements a CPTED strategy, it makes involvement in criminal behavior more difficult, thereby increasing the chance of being caught. Using interviews with 35 active juvenile street taggers from a large metropolitan area in Texas, this research explores whether implementing CPTED strategies deter offenders from engaging in criminal activity. Results suggest physical barriers, natural surveillance, access, and signage serve as deterrents during the target selection process."

Editorial, Kevin Buckler

Qualitative Criminology (QC)

"

Editor Introduction to Volume 11, Issue 4

This issue of the Journal contains four articles and two book reviews. Each of the four articles focuses in some way on crime, criminal justice, and space. "

Getting Jumped In Vacationland: The Complicated Rhetoric And Realities Of Assault In A Small Town, Andrew Burns, Kat Albrecht

Qualitative Criminology (QC)

"Crime Prevention Through Environmental Design (CPTED) postulates that jurisdictions can deter crime and antisocial behavior via effective use and proper design of the physical environment. When a jurisdiction implements a CPTED strategy, it makes involvement in criminal behavior more difficult, thereby increasing the chance of being caught. Using interviews with 35 active juvenile street taggers from a large metropolitan area in Texas, this research explores whether implementing CPTED strategies deter offenders from engaging in criminal activity. Results suggest physical barriers, natural surveillance, access, and signage serve as deterrents during the target selection process."

“I Know A Guy”: Examining Homeless Income Generation And Spatial Mobility, Daniel J. Reinhard, Ted Palys

Qualitative Criminology (QC)

"This study explores the variety of income-generating activities, along with corresponding distances that homeless and marginally housed persons travel to engage in the activities. Altogether 24 individuals were interviewed, and ethnographic field observations occurred over several months to increase rapport. The qualitatively gathered data were used in ArcGIS to calculate travel distances. These income-generating activities that persons engaged in were commonly forms of shadow work, and many kinds of income-generating activities were found. Among our sample, there appeared to be two distinct groups: those with more income methods and further travels, and those with fewer methods and shorter travels. The …

Entering Without Breaking: Challenges And Strategies Of The Qualitative Criminologist Investigating Carceral Spaces, Anaïs Tschanz

Qualitative Criminology (QC)

"Although qualitative methodology courses in criminology make it possible to gain theoretical and practical training in the collection, analysis and interpretation of data gathered using qualitative tools, these more rarely help address more targeted questions and concerns. Without making any claim to offer definitive solutions beyond the status of “tip,” this article attempts to tackle “things they don't really teach you how to handle in your qualitative methodology class,” concerning research in a carceral environment. By characterising carceral space as an opaque, all-encompassing environment pervaded by spatiotemporal constraints, it describes strategies that can be implemented in the face of organisational, …

Quicker, J. C., Batani-Khalfani, A. S., Before Crips: Fussin’, Cussin’, And Discussin’ Among South Los Angeles Juvenile Gangs., Shilpashri Karbhari

Qualitative Criminology (QC)

"Before Crips: Fussin’, Cussin’, and Discussin’ Among South Los Angeles Juvenile Gangs delves into a criminological discussion of juvenile gangs in South Los Angeles. Authors John C. Quicker and Akil S. Batani-Khalfani, deconstruct the term “juvenile gangs” and instead recommend using “street groups.” Chapters one through nine provide a historical timeline of the various pre-Crip-and-Blood gangs in South Central Los Angeles, past and present theoretical approaches, and the origins of the Slausons, one of the established early gangs in South Los Angeles. The book features a visual description of the various clubs, street groups, and gangs that were visible …

Decker, S. H., Pyroox, D. C., & Densley, J. A., On Gangs, Charles Cunha

Qualitative Criminology (QC)

"The authors of the book, On Gangs, are well-known criminologists specializing in criminology and gangs. Scott H. Decker is a Foundation Professor Emeritus of Criminology and Criminal Justice at Arizona State University. David C. Pyrooz is an Associate Professor of Sociology at the University of Colorado Boulder. James A. Densley is a Professor and Department Chair of Criminal Justice at Metropolitan State University. The authors provided a current compilation of robust knowledge."

Too Narrow, Too Bad: A Loophole The Adam Walsh Act Did Not Foresee In United States V. Icker, Sophie Davish

Villanova Law Review (1956 - )

No abstract provided.

Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith

Legislative Testimony & Comments

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

Dampak Ketiadaan Perda Penetapan Ukl/Upl Pada Kepastian Hukum Dalam Pelaksanaan Desentralisasi Di Bidang Lingkungan Hidup, Puteri Amirillis

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The case of mangrove damage on the South Coast of West Sumatra in 2016-2017 where the defendant was a Deputy Regent who owned land in the Nagari Mandeh area, Pesisir Selatan, West Sumatra. The land was built without an environmental permit. The absence of an environmental permit has emerged because of the mangrove damage. This paper focuses on the absence of environmental permits because there is no stipulation on the types of businesses that are required to have UKL / UPL which should be stipulated by a regional regulation (Perda) by the Regional Government of the Pesisir Selatan Regency. This …

Determinism V. Free Will & Genetic Evidence Of Addiction In Plea Bargaining And Sentence Mitigation: Conversion Of Incarceration To Probation And Rehabilitation Based On Genetic Addiction Risk Severity (Gars) Test, Kenneth Blum, Paul Mullen, Richard Green

St. Mary's Law Journal

In this Article, Dr. Kenneth Blum and his team present the case of a presently abstinent, thirty-five year old alcoholic (“AG”) who has several convictions for DWI. AG has undergone and continues to be engaged in out-patient substance abuse treatment. He entered treatment before adjudication and was mandated by the court to continue treatment to assist in maintaining sobriety. Treatment included the administration of the Genetic Addiction Risk Severity (“GARS”) Test.

AG was facing a probable five-year sentence for his fifth DWI conviction in Bexar County, Texas. However, because AG’s genetic risk results indicated a genetically induced dopamine dysfunction, hypodopaminergia, …

Criminal Law Policy In The Field Of Fishery Based On Indonesia’S International Obligation, Marimin Marimin, Lazarus Tri Setyawan, Rb Sularto

Indonesian Journal of International Law

The Indonesian Fisheries Law has determined criminal threats for perpetrators of illegal fishing in the ZEEI. In practice, there are differences in the application of imprisonment instead of fines for Indonesian citizens and foreign nationals who do illegal fishing. Such differences create injustice for Indonesian citizens. The results of the study indicate that criminal law policies in the field of fisheries need to be based on justice, in the sense of equality before the law. Foreign nationals who catch illegal fishing in the ZEEI are subject to imprisonment instead of a fine, while foreign nationals are not. Therefore, the Fisheries …

The Inconsistencies Of Consent, Chunlin Leonhard

Catholic University Law Review

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …

Beware What You Google: Fourth Amendment Constitutionality Of Keyword Warrants, Chelsa Camille Edano

Washington Law Review

Many Americans have potentially had their privacy rights invaded through invisible, widespread police searches. In recent years, local and federal governments have compelled Google and other search engine companies to produce the personal information of users who have conducted a search query related to a crime. By using keyword warrants, the government can conduct a dragnet search for suspects, imposing suspicion on users and exposing their personal information. The keyword warrant is a symptom of the erosion of the Fourth Amendment protection against suspicionless searches. Not only is scholarship scarce on keyword warrants, but also instances of these warrants are …

Criminal Law, J. Scottt Key

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 Supreme Court of Georgia covering the period from June 1, 2021 to May 31, 2022, as well as legislation adopted by the Georgia General Assembly during the 2021 session. 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 the practices.

Intersectionality Pertaining To The Disproportionate Rates Of Black Women In Prisons And Jails, Mackenzie Heller

University Honors Theses

The incarceration rates of Black women in America surpass even all other demographics. Yet, Black women are often not on the news when discussing prison rates in the United States. Rather we see Black men, Hispanic men, and so forth. While these people do make up large portions of the prison system they are seeing a decline in their incarceration rates. Black women are often pushed to the sidelines when discussing matters that can be seen as central to their livelihoods.

This thesis addresses the intersectionality that only Black women experience and how that affects their imprisonment rates and experiences …