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Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

The Poverty Defense, Michele Estrin Gilman

University of Richmond Law Review

No abstract provided.

The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale

Faculty Scholarship

In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Scholarship@WashULaw

In an effort to re-examine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue non-state actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities …

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Scholarship@WashULaw

In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich

The Scholar: St. Mary's Law Review on Race and Social Justice

In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Publications

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the …

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an …

The Poverty Defense, Michele E. Gilman

All Faculty Scholarship

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent …

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Four Reforms For The Twenty-First Century, Barry C. Scheck

Articles

What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.

Mass Incarceration At Sentencing, Anne R. Traum

Scholarly Works

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales-individual, family, and community-and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is …

Adverse Inference From Silence Of Accused, Jiefei Yang

War Crimes Memoranda

No abstract provided.

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

Scholarly Works

In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Breaking The Mexican Cartels: A Key Homeland Security Challenge For The Next Four Years, Carrie F. Cordero

Georgetown Law Faculty Publications and Other Works

Although accurate statistics are hard to come by, it is quite possible that 60,000 people have died in the last six-plus years as a result of armed conflict between the Mexican cartels and the Mexican government, amongst cartels fighting each other, and as a result of cartels targeting citizens. And this figure does not even include the nearly 40,000 Americans who die each year from using illegal drugs, much of which is trafficked through the U.S.-Mexican border. The death toll is only part of the story. The rest includes the terrorist tactics used by cartels to intimidate the Mexican people …

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff

Faculty Scholarship

This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Faculty Scholarship

In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process?: An Empirical Inquiry, Tamara Rice, Justin Mccrary

Faculty Scholarship

In 1997, the Supreme Court held that the sexually violent predator (SVP) act in Kansas did not violate double jeopardy or substantive due process even though it indefinitely commits an individual to a locked state-run facility after that individual has completed a maximum prison term. In this article, we question a core empirical foundation for the Court’s holding in Hendricks: that SVPs are so dangerous that they will commit repeat acts of sexual violence if they are not confined. Our findings suggest that SVP laws have had no discernible impact on the incidence of sex crimes. These results challenge …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.

Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald

Faculty Scholarship

This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …

Miller V. Alabama And The (Past And) Future Of Juvenile Crime Regulation, Elizabeth S. Scott

Faculty Scholarship

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century – an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms …

Confronting Criminal Law’S Violence: The Possibilities Of Unfinished Alternatives, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative …

Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary

Georgia Law Review

If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …

Insights And Blind Spots: A Qualitative Analysis Of Risk In Psychiatric Security Review Board Hearings, Abby Kealani Balfour

Dissertations and Theses

The prevalence and consequences of the insanity plea, titled "guilty except for insanity" in the State of Oregon, are fraught with misconceptions. The use of the plea requires a complex set of interactions between the mental health and criminal justice systems, and comes with severe costs for people who use it. Most of the research on the psychological aspects of the insanity plea emphasizes empirical validity in the form of risk assessment instruments and/or the biomedical model with its focus on disease and illness. This thesis analyzes from community psychology and critical theory perspectives the decision process of hearings held …

Harmonizing Equitable Exceptions: Why Courts Should Recognize An “Actual Innocence” Exception To The Aedpa’S Statute Of Limitations, Morgan Suder

San Diego Law Review

This Comment argues that to neutralize this potential inequality, the Supreme Court should affirm the Ninth Circuit’s recent decision in Lee v. Lampert, finding that a credible claim of actual innocence constitutes an equitable exception to the AEDPA’s one-year statute of limitations period. District courts must be able to call on their equitable powers, including both equitable principles already applied to the AEDPA’s statute of limitations as well as the actual innocence exception, in determining whether a district court may consider the merits of a criminal defendant’s otherwise untimely habeas petition.

Part II discusses the role of federal habeas corpus …

Deporting The Pardoned, Jason A. Cade

Scholarly Works

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions. Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws. As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation. While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine …

Progress In The Victim Reform Movement: No Longer The "Forgotten Victim", David L. Roland

Pepperdine Law Review

No abstract provided.

Victims' Rights: An Idea Whose Time Has Come--Five Years Later: The Maturing Of An Idea, Frank Carrington, George Nicholson

Pepperdine Law Review

No abstract provided.