Digital Commons Network^™

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has, however, failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Reflections On An Extraordinary Career: Thoughts About Gerald Caplan’S Retirement, Michael Vitiello

McGeorge Law Review

No abstract provided.

Substance And Procedure In The Reform Of Criminal Sentencing, Franklin E. Zimring

McGeorge Law Review

No abstract provided.

Reforming California Sentencing Practice And Policy: Are We There Yet?, Michael Vitiello

McGeorge Law Review

No abstract provided.

Does Prison Reform Bring Sentencing Reform? The Congress, The Courts, And The Structural Injunction, Brian K. Landsberg

McGeorge Law Review

No abstract provided.

Stop Presumptive Transfers: How Forcing Juveniles To Prove They Should Remain In The Juvenile Justice System Is Inconsistent With Roper V. Simmons & Graham V. Florida, 48 J. Marshall L. Rev. 365 (2014), Rachel Fugett

UIC Law Review

Overly expansive juvenile transfer laws are inconsistent with the Court’s reasoning because their primary objective is to transfer juveniles into the adult criminal justice system solely for the purpose of punishing and sentencing them like adults. In so doing, expansive juvenile transfer laws, more often than not, largely ignore a juvenile’s diminished culpability and greater capacity for change.

Testimonial Is As Testimonial Does, Ben L. Trachtenberg

Faculty Publications

In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold …

Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer

Michigan Law Review First Impressions

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …

Preempting The Police, David Jaros

All Faculty Scholarship

Fighting crime requires that we vest police with extensive discretion so that they can protect the public. Unfortunately, the nature of police work makes it difficult to ensure that law enforcement authority is not abused. This challenge is exacerbated by the fact that a great deal of questionable police activity exists in the legal shadows — unregulated practices that do not violate defined legal limits because they have generally eluded both judicial and legislative scrutiny. Local law enforcement strategies, like the maintenance of unauthorized police DNA databases and the routine practice of initiating casual street encounters, threaten fundamental notions of …

Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco

Articles & Book Chapters

Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …

In Need Of Clarification: A Call To Define The Scope Of The Routine Booking Exception By Adopting The Legitimate Administrative Function Test, Elizabeth Parrish

Catholic University Law Review

No abstract provided.

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

Text Me: A Text-Based Interpretation Of 28 U.S.C. § 2255(E), Jennifer L. Case

Kentucky Law Journal

No abstract provided.

Reflections On An Extraordinary Career: Thoughts About Gerald Caplan's Retirement, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Reforming California Sentencing Practice And Policy: Are We There Yet?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

The War On Drugs Is Over (If You Want It): State Drug Courts As An Alternative To Criminal Courts For Low-Level Nonviolent Drug Offenders, Blake Courlang

Cardozo Journal of Conflict Resolution

Part I of this Note describes the social, political, and legal reasons behind the rise of mandatory minimum sentencing in the 1980s and their path towards becoming advisory in the 2000s, as held by the Supreme Court in United States v. Booker. Part II provides a description of drug courts and argues for the use of drug courts as an alternative to the criminal sanctions for all nonviolent, low-level drug offenders. As part of this discussion, this Note examines the use of mandatory minimum sentencing post-Booker and the procedural method of divesting federal jurisdiction of nonviolent, low-level drug offenses …

Limits On The Search For Truth In Criminal Procedure: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Across diverse legal traditions, the search for truth is a basic function of the criminal process. Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict. Yet while truthseeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.

Different jurisdictions around the world show different preferences with respect to the tradeoffs between these values and the search for truth …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Publications

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Race To Incarcerate: Punitive Impulse And The Bid To Repeal Stand Your Ground, Aya Gruber

Publications

Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially …

Does Prison Reform Bring Sentencing Reform? The Congress, The Courts, And The Structural Injunction, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

No abstract provided.

Give Me Internet Or Give Me Death: Analyzing The Constitutionality Of Internet Restrictions As A Condition Of Supervised Release For Child Pornography Offenders, Laura Tatelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that blanket bans on internet and internet-capable devices as a condition of supervised release for child pornography offenders are unconstitutional under the doctrine of unconstitutional conditions. These bans infringe on fundamental liberties such as speech, association, and access to information, disproportionately affecting offenders’ ability to reintegrate into society. The analysis advocates for a balanced approach that prioritizes public safety while respecting constitutional rights, suggesting alternatives like supervised release rather than outright internet prohibition.

Mass School Shootings: Predicting The Usage Of Firearms In Acts Of School Violence, Melanie A. Hart

College of Graduate Studies: Theses & Dissertations

Due to increased media attention and associated fear, school shootings have become a major concern for the public. Attempts to predict and prevent shootings have been developed by a variety of government agencies such as the Center for Disease Control and Prevention and the Federal Bureau of Investigation. A psychological profile, however, has yet to be established. This study uses demographic and behavioral characteristics of perpetrators and school characteristics to predict the likelihood of a perpetrator’s usage of firearms. A total of 345 perpetrators of mass school violence incidents are examined, including 266 who used firearms. White perpetrators and those …

The Growth Of Incarceration In The United States: Exploring Causes And Consequences, Jeremy Travis, Bruce Western, F. Stevens Redburn

Publications and Research

After decades of stability from the 1920s to the early 1970s, the rate of incarceration in the United States more than quadrupled in the past four decades. The Committee on the Causes and Consequences of High Rates of Incarceration in the United States was established under the auspices of the National Research Council, supported by the National Institute of Justice and the John D. and Catherine T. MacArthur Foundation, to review evidence on the causes and consequences of these high incarceration rates and the implications of this evidence for public policy.

Our work encompassed research on, and analyses of, the …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Fifteen Years Of Supreme Court Criminal Procedure Work: Three Constitutional Brushes, Daniel C. Richman

Faculty Scholarship

This essay – written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” – is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities. Readers undoubtedly can come up with more than three styles. But, in any …

A Good Name: Applying Regulatory Takings Analysis To Reputation Damage Caused By Criminal History, Jamila Jefferson-Jones

West Virginia Law Review

No abstract provided.

Beyond Bing: The Arthur Rule Lives On As The Touchstone For The New York State Right To Counsel, Adrienne Levy

Cardozo Law Review

No abstract provided.

Driving While License Suspended - Third Degree, A Framework For Requesting Alternative Sentences, Sahar Fathi

Seattle Journal for Social Justice

No abstract provided.