Digital Commons Network^™

Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce A. Green

Texas A&M Law Review

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although …

Bearer Negotiable Instruments: Addressing A Financial Intelligence Gap And Identifying Criminogenic Weaknesses, Hollis B. Kegg

Dissertations, Theses, and Capstone Projects

Bearer Negotiable Instruments (BNI) are a long-standing category of financial instruments used to transfer large amounts of money in ways that may not be subject to regulation, reporting, tracking, review, or oversight. There is limited information available on BNIs, and no evidence that any studies have been undertaken on BNIs alone, much less reported. Increasingly, BNIs are being used for illegal purposes including money laundering. This study gathers information about their characteristics, nature, purpose, legal status, and numbers. It also focuses on the crime risks associated with BNIs, the crime opportunities they facilitate, and the criminal weaknesses in the financial …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Journal of Entertainment & Technology Law

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Insider Expungement, Brian M. Murray

Utah Law Review

Like many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented …

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself Critics' primary target is the "trial penalty." But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of "progressive prosecutors" is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

Policing & The Problem Of Physical Restraint, Steven Arrigg Koh

Faculty Scholarship

The Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous …

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol

Arkansas Law Review

To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons …

Analisis Terhadap Penerapan Asas Formil Dan Materiil Pembentukan Rancangan Undang-Undang Tentang Penghapusan Kekerasan Seksual, Siti Sharhana Drajat

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Sexual violence in Indonesia has caused a public’s worry. The bill on the elimination of sexual violence (RUU PKS) is considered very important to be passed. Purpose of this article is to analyze the suitability of the principles in the RUU PKS with Indonesian act of Formulation of Laws and Regulation Number 12 of 2011 (UU P3). The method used in writing this article uses the normative legal research. Results of this study are formal principles in the anti sexual violence bill is appropriate with the UU P3 except the principle of openness. Likewise with the material principles in the …

Katz Or Dogs? Why The Katz Reasonable Expectation Of Privacy Test Is More Applicable To Advancing Technology Than A Test Applied To Dog Sniffs, Blade M. Allen

Student Published Scholarship

Most often, when law enforcement agencies or governments use a person’s DNA or genetic information, they do so in the pursuit of justice. That said, there are privacy concerns that arise when the government or police have open access to any person’s DNA or genetic information, especially through the Internet. This article attempts to present an argument for a reasonable expectation of privacy (REP) in a person’s genetic information or DNA as well as other forms of advancing technology. It begins with a history of the US Supreme Court’s interpretations of the Fourth Amendment to the US Constitution, continues with …

Beyond Dusky: Developing A Statutory Affirmative Defense For Individuals With Autism Spectrum Disorder, Sara Murphy

Hofstra Law Student Works

No abstract provided.

The 2022 Alabama Executions And The Crisis Of American Capital Punishment, Alexandra L. Klein

Scholarly Articles

The Death Penalty Information Center described 2022 as “the year of the botched execution” in its 2022 Annual Report. Alabama’s execution errors were especially serious: it attempted to execute four people, botched three of its four executions, and ultimately called off two executions. Alabama’s 2022 executions and its errors are the culmination of common problems in capital punishment across the United States. A full understanding of capital punishment requires an analysis of individual cases, including executions, and analysis of how that case fits within the system of capital punishment. Evaluating a single case may reveal unfairness and arbitrariness, but tracking …

Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Stories That Kill: Masculinity And Capital Prosecutors' Closing Arguments, Pamela A. Wilkins

Articles

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite—or perhaps because of—the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern …

Forensic Science; Far From "Scientific Certainty", Kathleen Dewitt

Hofstra Law Student Works

No abstract provided.

As Long As There Is Money Involved In Justice, There Will Be No Justice: The United States' Criminalization Of Poverty And The Need To Demonitize Our Criminal "Justice" System, Amanda Piccione

Hofstra Law Student Works

This paper will show how the United States will fail to achieve a criminal “justice” system if money is involved. The cyclical impacts of poverty and marginalization on communities of color throughout our nation’s history will continuously perpetuate an unequal and unfair criminal system. Section II begins by delving into the history of poverty in the United States. It then analyzes poverty and its impacts today while specifically discussing the effects on communities of color and the intersections with crime. Section III examines the legal issue, exploring our monetized legal system and discussing how we can change our criminal legal …

Grandma Got Arrested: Police, Excessive Force, And People With Dementia, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Recent events have shone a light on the particular vulnerability of people with dementia to police violence. Police are arresting people with dementia and using excessive force to do it—drawing their firearms, deploying tasers, and breaking bones.

To date, little attention has been paid to the burgeoning number of people with dementia, one of society’s most vulnerable populations, and their experiences with the criminal justice system. This Article examines how dementia leads people to engage in activity that appears criminal (shoplifting (forgetting to pay), and trespass (wandering), for instance) and the disproportionate response of police. In several cases where people …

Aesthetics Of Perpetration And Perpetrators In International Criminal Trials, Shannon Fyfe

Scholarly Articles

In Invisible Atrocities: The Aesthetic Biases of International Criminal Justice, Randle DeFalco argues that aesthetic, rather than legal, considerations play a role in shaping our understanding of international crimes. He claims that international criminal justice is focused on atrocities that constitute the most horrific spectacles of violence—and largely ignores “aesthetically unfamiliar forms of mass harm causation – those that are slow, attritive, banal, and hence generally unspectacular in nature.” DeFalco makes a compelling case in two senses: descriptively, that we do in fact consider spectacular atrocities to be more worthy of international criminal prosecution, and also normatively, in that …

Abolishing Police Consent Searches Through Legislation: Lessons From Scotland, Josephine Ross

American University Law Review

Why have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.

Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative …

Is It Science Or Storytime? Expert Testimony Evaluating Child Witness Credibility In Sexual Assault Cases, Elizabeth I. Boals

American University Law Review

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such …

The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan

American University International Law Review

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one …

Victims Of Coercive Plea Bargaining: Defendants Who Give False Testimony For False Pleas, Lucian E. Dervan, Vanessa A. Edkins, Thea Johnson

American University Law Review

The last decade has seen a significant growth in academic research and literature related to coercive plea bargaining. One thread that emerges from this research is how coercive plea practices encourage innocent defendants to falsely condemn themselves, and sometimes even other innocent people to get the benefit of a “good” deal. This Article compiles and synthesizes this research to highlight how and why typical plea bargaining can lead to false guilty pleas. It also frames those who falsely plead guilty in the face of coercive bargains and those who are subject to false testimony as a result as victims of …

Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton

Case Western Reserve Journal of International Law

No abstract provided.

Unwinding “Law And Order”: How Second Look Mechanisms Resist Mass Incarceration And Increase Justice, Destiny Fullwood, Cecilia Bruni

Human Rights Brief

For decades, the United States has used incarceration to achieve a particularized version of safety. Amidst the civil rights movement, presidential candidate Barry Goldwater wielded the phrase “law and order” against the masses of Black men, women, and children in their fight for equitable treatment. This came at a time when “[i]t was no longer socially permissible for polite White people to say they opposed equal rights for Black Americans. Instead, they began ‘talking about the urban uprisings’” and “attaching [those] to street crime, to ordinary lawlessness[.]” The result was a decades-long, persistent campaign to maintain order by arresting and …

Politics And The Criminal Enforcement Of The Toxic Substances Control Act, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy, Dr. Danielle Mcgurrin

Seattle Journal of Technology, Environmental, & Innovation Law

Environmental crimes related to chemical substances are governed under the Toxic Substances Control Act (TSCA). When these violations involve significant harm or culpable conduct they may be remedied through criminal prosecution. While Democratic and Republican presidents have offered historically varied support for criminal enforcement, we know very little about how politics affects TSCA enforcement outcomes or TSCA criminal enforcement generally. To address these issues, we performed a content analysis of 2,728 criminal prosecutions from 1983-2021 that derive from the United States Environmental Protection Agency (EPA) criminal investigations and select all TSCA prosecutions. Results show 75 prosecutions were adjudicated, involving 137 …

When “Riot” Is In The Eye Of The Beholder: The Critical Need For Constitutional Clarity In Riot Laws, Nancy C. Marcus

Faculty Scholarship

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Sovereign, Employer, Community: A Theory Of Military Justice Beyond Discipline, Obedience, And Efficiency, Dan Maurer

Marquette Law Review

Unfortunately, when we look for such a theory to understand or legitimate the structure, foundational premises, and evolutionary path of the U.S. military’s separate criminal justice system, we find only a mirage—the blurry image of a super-rationale that simply evaporates the closer we inspect it. There is no theory that sheds light on why the system is what it is, nor how or why it could change further. This Article proposes such a theory. Aside from breaking ground as the first comprehensive theory of military justice in the field’s storied history, it aims to contribute to legislators’, the courts’, commanders’, …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.