Digital Commons Network^™

“So, You Can Let Me Look At Your Phone?”: Detectives Obtaining Consent To Search Cell Phones, Stacy Dewald

Journal of Criminal Justice and Law

Issues regarding Fourth Amendment protections and police access to digital evidence have been an ongoing battle in the courts over the past few years. Despite growing literature on the importance of collecting digital evidence during criminal investigations, there is little research on how detectives obtain consent to get to digital evidence, particularly cell phones. The present study addresses this research gap by drawing upon participant-observation, in-situ interviews, and in-depth interviews of detectives in an American suburban police department. The data indicate that during suspect interviews, detectives attempt to obtain consent to search phones to avoid delays related to obtaining a …

Individualizing Criminial Law's Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

Villanova Law Review (1956 - )

No abstract provided.

The Doctor Will See You Now: The Fourth Circuit Revives The Juvenile Detainee's Right To Treatment By Adopting The Professional Judgment Standard In Doe 4, Matthew Skolnick

Villanova Law Review (1956 - )

No abstract provided.

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …

Technology In The Security Sector: Mexico, Vanessa J. Gutierrez, Melina Ponte, Angiee Rosario, Arleen Castillo, Henry Saldarriaga, Hector Tejeda, Stephanie Reich, Rosemary Barberet

Publications and Research

The use of technology in policing seeks to improve the efficiency and effectiveness of the daily duties police officers may encounter. However, there is mixed empirical data on the use of technology and if it is really contributing to the institutional goals of the security sector, or, if it is contributing to other factors. This report provides an exploratory approach to understanding what information technology is being used in Mexico at the state level, in order to compare where broader application of information technology could make impactful contributions to the security situation in the country.

With a focus on six …

Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw

Journal of Legislation

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and …

A (Partial And Principled) Defense Of Sentences Of Life Imprisonment, Mirko Bagaric, Jennifer Svilar

Cleveland State Law Review

There has been more than a five-fold increase in the number of life sentences in the United States over the past four decades. One in seven prisoners in the United States is serving a life (or virtual) life sentence. This amounts to over 200,000 prisoners. The increase has occurred against the backdrop of near universal condemnation by scholars and public policy advocates – many of whom are now advocating for the abolition of life sentences. Arguments that life sentences are not an effective deterrent or means of protecting the community have some merit. Yet, we argue that in a limited …

Innocent Until Proven Arrested: How Pretrial Juvenile Detention For Nonviolent Offenders In Ohio Inflicts Constitutional Violations, Taryn Schoenfeld

Et Cetera

When a juvenile is accused of committing a crime in Ohio, juvenile court judges must determine whether to detain the child pretrial in a juvenile jail or permit the child to go home to await trial. Whereas alleged adult offenders have the right to pay a monetary bond to be released from jail pretrial, juveniles have no such right. Thus, once a judge makes the decision to detain a juvenile pretrial—prior to being adjudicated delinquent of any crime—it is difficult for that decision to be undone. While incarcerated, juveniles suffer irreversible psychological, emotional, mental, and social harms, despite juvenile courts …

Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski

Cleveland State Law Review

In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …

Snitch. Snake. Mole. Books.: Examining Responses To “Insider/ Outsider” Researchers In Corrections, Talisa J. Carter, Chelsea Thomson

Qualitative Criminology (QC)

Qualitative researchers face unique challenges when conducting original data collection within facilities of confinement. These challenges are shaped by a range of factors including the study’s research design, researcher identity, and organizational climate of the facility. Although the barriers of data collection in corrections are known, literature providing context, nuance, and recommendations for overcoming these obstacles is sparse, especially for qualitative fieldwork. This work addresses this gap by examining responses of correctional employees to observational research. During data collection, correctional staff called the primary author “snitch,” “snake,” “mole,” and “Books.” This paper investigates these labels and offers suggestions on how …

“Leave Your Pain Here”: An Illustration Of Therapeutic Jurisprudence Through The Remarks Of Judge Rosemarie Aquilla From The State Of Michigan V. Larry Nassar, Leah Kaylor, Terri L. Weaver, Katherine Kelton

Qualitative Criminology (QC)

Dr. Lawrence Nassar was the national medical coordinator of the United States of America Gymnastics (USAG), gymnastics team physician/assistant professor at Michigan State University, and the USAG artistic team physician who sexually abused many young women and children under the guise of medical treatments. In an unprecedented legal event, Judge Aquilina allowed anyone who had been impacted by Nassar’s abuse to participate in the pre-sentencing phase by reading a victim impact statement. Judge Aqualina listened to 156 impacted speakers and responded with personalized messages. This paper will examine Judge Aquilina’s responses to the victim impact statements through the lens of …

Using A Trauma-Informed Practice Framework To Examine How South Australian Judges Respond To Trauma In The Lives Of Aboriginal Defendants, Katherine J. Mclachlan

Qualitative Criminology (QC)

This article uses a trauma-informed practice framework to examine how South Australian superior court judges acknowledge defendant trauma when sentencing Aboriginal defendants. Trauma-informed sentencing requires that judges realise the presence of trauma, recognise its relevance, respond in a way that is informed by trauma and act to avoid re-traumatisation. By analysing sentencing remarks of 42 defendants identified as Aboriginal, the presence of trauma-informed practice was explored, in terms of judicial decision-making, the sentencing process and the sanction imposed. While not holistic summaries of judges’ reasoning, sentencing remarks are intended to enable the parties and the community to understand sentencing logic. …

White Supremacy And The Future Of Liberal Democracy: The Case Of The Nordic Resistance Movement, Ida Oesteraas

Qualitative Criminology (QC)

In 2015, the largest neo-Nazi organization in Scandinavia, The Nordic Resistance Movement (NRM) registered as a political party and entered electoral politics in Sweden. Utilizing qualitative content analysis, the current work explores changes in NRM’s rhetoric from before the party entered politics in 2010 and five years later in 2018. Focus centers on NRM’s ideology, what or whom they frame as their threat, and their suggested solutions for constructed problems. Results show fascist rhetoric in both time periods. An argument is made that there is no actual moderation in NRM’s politics by liberal democracy. Rather, far-right extremism is a threat …

Defense, Disrespect, And #Deadly: A Qualitative Exploration Of Precursors To Youth Violence Informed Through Hospital-Based Violence Prevention Program Follow Up, Katherine B. Snyder, Ashley Raposo-Hadley, Charity Evans, Ashley Farrens, Jennifer Burt, Gaylene Armstrong, Julie Garman, Lindsey Wylie, Mark Foxall

Qualitative Criminology (QC)

Success of youth violence intervention and prevention effects, particularly for gun violence, will be enhanced when efforts are appropriately informed by the antecedents and context of violence. Youth violence is guided by social and cultural norms that are shifting with the rise of technology. Bullying, gang violence, and self-directed violence is increasingly found to occur in the online space influencing peer groups across contexts. Through focus groups with youth at risk for violence and victimization, this study finds three themes emerge as common precursors to violence: defense of self or others, disrespect of self or family occurring in traditional community-based …

Babe In The Woods: Why The Federal Rules Of Evidence Should Adopt A New Hearsay Exception To Protect Children, Marlee Rowe

Arkansas Law Notes

Child abuse is a public health problem affecting millions of children across the United States. Many states have adopted hearsay exceptions to prevent child victims of abuse from being forced to testify in front of their abusers. However, not all states provide these protections, and the exceptions vary widely from state to state. Because many states draft their rules of evidence to accord with the Federal Rules of Evidence, Congress should enact a hearsay exception on the federal level to promote uniformity and to ensure child victims of abuse are protected from further traumatization, regardless of what state they live …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Criminal Law—The Federal Sentencing Guidelines: Examining The Physical Restraint Sentencing Enhancement, Drew Curtis

University of Arkansas at Little Rock Law Review

No abstract provided.

Lying At Plea Bargaining, Thea Johnson

Georgia State University Law Review

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders and the paradox it presents for those who care about creating a fairer criminal legal system. The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for—and sustains—the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining by organizing the types of lies into three categories: lies about facts, lies about law, and lies …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

The Pathological Whiteness Of Prosecution, India Thusi

Articles by Maurer Faculty

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness …

Extraction Of Personal Data: A New Form Of Colonialism Or Continuation Of A Colonial Practice? Adult Native American Adoptees Resist Assimilation And Rebuild Erased Identities, Leonard Mukosi

American Indian Law Journal

A new form of colonialism, distinctive of the 21st century is reported to be taking shape: data colonialism. Data colonialism interprets the contemporary capture and processing of personal data by governments or data corporations as an evolution of historical colonialism. Scholars who advance this theory do not juxtapose the contents, form, let alone the physical violence of historical colonialism with the contemporary practices of appropriation of personal data. Instead, they only refer to historic colonialism in the context of its function within the development of economies on a global scale. The main argument made in this paper is that; to …

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

A Comparative Analysis Of Statutory Remedies For Wrongful Convictions In The Fifty States, Abigail St. John

Honors Theses

Thousands of individuals have been wrongfully convicted across the United States. When an exoneration occurs, an individual’s conviction is absolved, and their innocence is proved through newly discovered evidence. While it might be impossible to protect from the errors of the criminal justice system, it is in the hands of the state to compensate the wrongly convicted. There is an abundance of research that focuses on reforming the existing wrongful conviction compensation legislation, but there is a lack of scholarly data that explains the motivations behind this compensation. Moreover, few researchers have considered the role of partisanship and political parties …

Foreword: The Role Of The “Victim” In The Criminal Legal System, Kate Mogulescu

Brooklyn Law Review

On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system. Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process? Where does the issue of victimization emerge, how is it received and what should the system’s response be? Who gets a voice? And when? Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy? The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion …

Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning

Brooklyn Law Review

Defendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to …

Defense Counsel’S Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts

Brooklyn Law Review

A broad scholarly coalition supports the prohibition or diminution of the impeachment of criminal defendants with their convictions. Yet scholars should pay more attention to the flipside arrangement: impeachment of prosecution witnesses by defense counsel. First, because those engaged in reform efforts need to resolve the competing interests: constitutional arguments on behalf of the defense, but, on the other hand, concerns about a tool that (regardless of the nature of the witness) risks reinforcing biases and stereotypes. Second, because the impossibility of adequate resolution is itself important to note. Whether one considers the conflicting values of rule-makers deciding whether to …

Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben

Brooklyn Law Review

This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed …

The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe

Brooklyn Law Review

Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important …

Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave

Brooklyn Law Review

The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.

Rotten Social Background And Mass Incarceration: Who Is A Victim?, Steven Zeidman

Brooklyn Law Review

Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined …