Digital Commons Network^™

“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender

Touro Law Review

Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …

Special Issues Facing People Who Use Drugs And How Sensitive Lawyers Can Help: Three Case Studies From Rutgers Law Associate, Andrew J. Rothman

Touro Law Review

No abstract provided.

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

The False Evidence Ploy: A Coercive, Not Just Deceptive, Police Tactic, Alexa D. Sondey

Touro Law Review

Why would people confess to a crime they did not commit? It may seem hard to imagine that an innocent person would confess but as this Note will show, false confessions are a real and serious issue. One cause of false confessions is the False Evidence Ploy - a police interrogation tactic where police falsely tell a suspect they have some sort of incriminating evidence against them. This Note argues that the Ploy is psychological coercion, as it may cause innocent suspects to believe they actually committed the crime and then confess. N.Y. Bill S324A presented a solution, banning the …

“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon

Touro Law Review

In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …

Prosecutorial Reform And The Myth Of Individualized Enforcement, Justin Murray

Articles & Chapters

The American prosecutor’s legitimacy faces unprecedented challenges. A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement. This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting …

Breaking The Chain: How An Alternate Dispute Resolution Process Can Be Used In The Criminal Justice System For First-Time Non-Violent Criminal Offenders, Leora Perlstein

Cardozo Journal of Conflict Resolution

The criminal justice system is deeply rooted in our history. There are traditional views on how it should be run and conducted. “Founded on the concept that crimes against an individual are crimes against the state, our justice system prosecutes individuals as though they victimized all of society.” Traditionally, when individuals commit a crime, they go through the process of receiving a ticket—or if they commit a particular violent crime they will be immediately arrested—and then they go through the process of appearing in court for an arraignment in which they are “read the charges against [them]” and are either …

Plea Tracking In The Durham County District Attorney’S Office: Second Report On Superior Court Cases Pled From April 2021 To November 2023, Kelly Evans, Elizabeth Gifford, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …

Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Interrogating Miranda's Custody Requirement, Lauren E. Clatch

Law Faculty Publications

Interrogating officers need only issue Miranda warnings in “custodial” settings, and a significant degree of psychological coercion makes a setting custodial. This Article asks a question at the heart of Miranda caselaw: Have courts applied Miranda’s custody trigger consistent with people’s real experiences of police questioning? If not, courts are allowing, and justifying, the admission of unwarned self-incriminating statements by deeming those interrogations “noncustodial” even when there is a significant element of compulsion. To compare courts’ custody decisions to civilians’ perceptions of coercion in interrogations, I surveyed laypeople across two studies using forty interrogation scenarios from jurisdictionally diverse cases spanning …

No Knock? No Case: Prosecutorial Deterrence As A Countermeasure To No-Knock Warrants, Tamika Griffin Moses

Law Faculty Publications

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy …

Accidental Brady Violations, Adam M. Gershowitz

Faculty Publications

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.

But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is …

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

Is The Defendant Mad Or Bad? The Association Between Mental Health, Race And Sex In Sentencing In Federal Courts, Tracy Sohoni, Sylwia Piatkowska, Briana Paige

Sociology & Criminal Justice Faculty Publications

Although US courts regularly sentence individuals with mental health problems, to date, there has been little research on whether mental health indicators are related to sentencing decisions. The focal concerns perspective suggests that sentencing decisions reflect perceptions of the blameworthiness of the defendant, concerns about protecting the community, and practical considerations. Potentially, mental health issues could serve as a mitigating factor in sentencing decisions by making defendants seem less culpable for their actions and more deserving of assistance rather than punishment, and/or due to concerns about practical considerations related to higher costs of incarceration or of exacerbating current mental health …

Curb Their Enthusiasm: Controlling The Discretion Of Creative Prosecutors, Scott Schumacher

Articles

On January 6, 2021, a mob of supporters of then-president Donald Trump stormed the U.S. Capitol Building to disrupt the certification by Congress of the presidential election. Joseph Fischer was a member of that mob, and he was one of the individuals who forced his way into the Capitol Building. He was charged with multiple criminal counts, including obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c) for allegedly attempting to delay Congress’ election certification. In Fischer v. United States, the United States Supreme Court reversed the obstruction charge, holding that section 1512(c) did not apply to …

Disrupting Public Defense: A Transitions Theory Approach, Matt Bender

Lewis & Clark Law Review

Public defense problems are well known, but a solution has been elusive. This Article analyzes public defense’s adaptive features using the Multi-Level Perspective (MLP) for the first time. The MLP is a theoretical framework that is often employed to study institutional and societal barriers to innovative ideas, like climate change responses and clean energy transitions. This Article describes the MLP’s theoretical model and uses it to examine why public defense reform consistently fails.

This Article then goes beyond the MLP framework to explore how transition management tools can be used to design and nurture new approaches to public defense. I …

Provisional Release At International Criminal Courts And Tribunals – Lessons Learned?, Ava Schuster, Göran Sluiter

FIU Law Review

This article builds on Professor Meghan Fairlie’s earlier critique of pre-trial detention practices at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Fairlie identified significant shortcomings in safeguarding the right to liberty and the presumption of innocence of detainees, arguing that the Tribunal’s approach was inconsistent with international human rights law (IHRL). Fifteen years later, how has the International Criminal Court (ICC) addressed these concerns? While the Rome Statute introduces notable improvements, including an explicit commitment to IHRL, the Court’s practice still heavily favors detention over liberty. A key issue remains the ICC’s reliance on State cooperation for provisional …

Adults Drug Court Model's Review: A Case Study, Byron R. Titus

Antioch University Dissertations & Theses

In 1989 Dade County, Florida, the so-called “War on Drugs” was in full swing. As a result, drug courts were created, acting as a diversion program for the many people subsequently caught up in this “war.” Since then, such “specialty courts” have proliferated across the planet. In some cases, local versions have been adopted to adjust to their unique population, culture, risk, and needs. This dissertation is a case study that reviews three Intensive Probation Supervision Programs (IPSP). These IPSPs identify a drug court in their state or country before it becomes a “certified drug court” (now more often referred …

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Three Essays On The Economics Of Crime And Education, Joy Kanengiser

Graduate Theses, Dissertations, and Problem Reports (ETD)

The first chapter investigates the labor market impacts of the Clean Slate Law, a policy designed to reduce barriers to entry by automating the sealing of criminal records. Using IPUMS CPS data from six states, I employ a difference-in-differences framework with individual fixed effects and an event study design to identify changes in employment outcomes. I find that the Clean Slate policy increases employment by 0.33 percentage points and weekly hours worked by 0.44 hours (approximately 24 minutes). Full-time employment rises, while self-employment declines by 0.12 percentage points, suggesting a shift from informal to more stable, formal jobs. These employment …

Penggunaan Unconventional Weapons Dalam Konflik Bersenjata Modern, Fadhillah Wahid Pramudya Aldiansyach

Jurnal Hukum & Pembangunan

The use of unconventional weapons such as cluster munitions, white phosphorus, nuclear weapons, artificial intelligence-based autonomous systems (AI/LAWS), and military neurotechnology is increasingly dominating modern armed conflicts. The characteristics of these weapons, particularly their widespread effects, uncertainty of control, and potential for automatic escalation, can pose serious challenges to the application of the principles of distinction and proportionality in International Humanitarian Law (IHL), especially when used in densely populated areas. The modernization of nuclear systems, the accelerated integration of AI into military command, and the emergence of neurotechnology indicate a regulatory gap that could potentially undermine humanitarian protection. This study …

Punishing Violence, Shima Baradaran Baughman

American University Law Review

The American criminal justice system doles out the harshest punishments in the world. It is infamous for its protracted criminal sentences and prodigious criminal code. But what most scholars and policymakers overlook is that the United States punishes only a fraction of the total serious crime that occurs in the country—including violent crime.

Approximately twenty million serious crimes occur in America each year, but only about half of these are reported to police. Of those reported, the police make arrests for an average of only twenty percent of serious crimes, and only ten percent of arrests result in a conviction. …

Amending Rule 15.3 Of The Mississippi Rules Of Criminal Procedure To Fully Capture Boykin V. Alabama And Acknowledge Systemic Coercion Indigent Defendants Face In Mississippi, Sarina P. Larson

MC Law Review

The U.S. Constitution—not a state—is what governs questions of constitutionality. It follows that for a state court to make a constitutionally sufficient record of a defendant’s waiver at their plea, the complete interpretation as to sufficiency by the United States Supreme Court must be followed. This Comment stands for the proposition that when Rule 15.3 of the Mississippi Rule of Criminal Procedure was adopted in 2017, it misinterpreted the call of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969). Ultimately, this Comment suggests amendments to Rule 15.3 that would place it in compliance with Boykin, …

Beyond Policy: Overcoming Challenges In Prosecuting Gender Persecution At The International Criminal Court, Yvonne M. Dutton, Milena Sterio

FIU Law Review

No abstract provided.

Professor Megan A. Fairlie's Scholarship On The Relationship Between The United States And The International Criminal Court, Jennifer Trahan

FIU Law Review

No abstract provided.

Contested Criminalization, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, …

You Get The Jury You Get And You Don’T Throw A Fit, Taurus Myhand

Scholarly Works

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images is not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the …