Digital Commons Network^™

“I’M Not Really Sure Of What Exists Here”: Frontline Perspectives On Services For Technology-Facilitated Sexual Violence, Jennifer L. Mcarthur, Kayla J. Goruk, Julie Blais, Alexa Dodge, Suzie Dunn

Articles, Book Chapters, & Popular Press

Technology-facilitated sexual violence (TFSV) is a pervasive issue, yet research on the availability, accessibility, and effectiveness of services for TFSV victimsurvivors remains limited, particularly in Canada. This qualitative study examines the state of service provision for TFSV in Nova Scotia, drawing on insights from 12 interviews with service providers specializing in sexual violence prevention and response. The study explores the availability and nature of services offered to TFSV victim-survivors and the key challenges faced by professionals in providing support. Thematic analysis highlights significant gaps in service provision, including a reliance on generalized approaches, restrictive eligibility criteria that exclude certain victimsurvivors, …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Victims In Criminal Cases: The Right To Settle Your Own Case, Isabella Lund

Public Interest Law Reporter

No abstract provided.

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Faculty Articles

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Searching For A Big Score: Analyzing Drug Yield From Search Warrant Executions, Elizabeth Griffiths, Walter Campbell, Kay L. Levine, Joshua C. Hinkle

Faculty Articles

In this study, we investigated the extent to which law enforcement efforts predicted drug and other kinds of illicit yield in search warrant executions. The data are drawn from one major metropolitan police department during 2005, 2009, and 2012. Using multilevel random intercept logistic regression models and multilevel random intercept multinomial logistic regression models, we regress high yields of various kinds of drugs and other illicit items seized during searches on the investigative activities that led to search warrant applications and the enlistment of teams of officers or other agencies in executing the search. Investments in high-effort search warrant work …

Defederalizing Opioid Addiction Care, Matthew B. Lawrence

Faculty Articles

Lack of access to evidence-based care for drug addiction is an urgent problem amid a decades-long overdose crisis that kills tens of thousands of Americans a year. Opioid addiction is the primary driver of overdoses today, and medicines exist to treat such addiction that can dramatically improve quality of life while reducing the risk of deadly overdose by more than half. Yet fewer than one in four of the nine million Americans who need such evidence-based medical care for their addiction receive it. Chief among barriers to access are restrictive and burdensome federal requirements limiting the use of narcotic medications …

Healing Communities With Police Divestment: Seeking Abolition Through Transformative Reform And Community-Government Collaboration, Jessica E. Gillson

Undergraduate Honors Theses

Concerns about the efficacy and sustainability of the U.S. carceral system have persisted throughout the country’s history, recently fueling renewed activism and bipartisan calls for reform. However, proposed solutions remain divisive. This thesis first defines the current status of our prison systems, then explores collaborative alternatives to incarceration and policing that support communities and break cycles of incarceration.

Focusing on partnerships among local governments, community organizations, justice-involved individuals, and law enforcement, this study examines holistic approaches to crime prevention, reentry, and reintegration. Using an interdisciplinary framework incorporating restorative justice, community resilience, and systems theory, it investigates how community-based strategies can …

Alternate Approaches: Beyond Problem-Solving Courts, Erin Collins

Law Faculty Publications

Problem-solving courts were born out of a well-meaning experimentalist spirit, a spirit that is very much in line with the vision of a recent symposium on the multidoor criminal courthouse. These courts, which include drug courts, mental health courts, veterans courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse — the so-called “revolving door” that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, one …

Web Of Exploitation: The Psychological Need For Comprehensive Federal Law To Combat Cyber Sexual Abuse, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

Cyber sexual abuse inflicts deep and lasting psychological harm on victims, often exacerbating the trauma of traditional sexual abuse due to the permanence and reach of digital content. Survivors may experience depression, anxiety, PTSD, and suicidal ideation as intimate images, videos, or messages resurface indefinitely online. Despite the severity of its impact, current state and federal legal protections are limited and inconsistent, leaving many victims without adequate criminal or civil remedies. This article argues for the creation of comprehensive federal legislation specifically targeting cyber sexual abuse. Such laws would not only provide clearer paths to justice and accountability but also …

Time For A New War Crimes Commission?, Diane Marie Amann

Scholarly Works

This essay begins by exposing gaps in accountability in the wake of Russia’s full-scale invasion of Ukraine in 2022. It explains why neither the International Criminal Court nor any other body is authorized to pursue all the crimes of that war, and then considers whether a more comprehensive approach might be found in the United Nations War Crimes Commission. In its five years of operation  (1943–1948) that multilateral institution gathered information on tens of thousands of potential suspects, and helped to coordinate trials against many of them – not only the Nuremberg proceedings, but also in Allied zones of occupation …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Introduction To Perspectives On The International Criminal Court And International Criminal Law And Procedure: A Symposium In Memory Of Megan Fairlie, Howard Wasserman

FIU Law Review

No abstract provided.

Sex Crimes And Progressive Prosecution: Reimagining Sex Offenses And Sorn Laws As An Opportunity For Criminal Justice Reform, Kana Turley

Journal of Criminal Law and Criminology

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender …

Business Law In The Ring: Nevada's Rebel Rules Versus Delaware's Corporate Crown, Kalin Sokell, Collin Weires

Nevada Law Journal Forum

This White Paper will begin with an analysis of specialized courts, starting with the Delaware Court of Chancery. It will then compare Delaware’s courts with the business courts in Texas and Nevada and will provide a detailed implementation plan for a specialized business court in Nevada. Next, this White Paper will address the differences between the corporate laws in Nevada and Delaware, including the benefits of incorporating in Nevada versus Delaware. The White Paper will then briefly discuss the proposed general jurisdiction bill in Nevada, and why it ultimately failed. Finally, this White Paper will end with remarks on where …

Rethinking Misdemeanor Incompetence, Susan A. Mcmahon

Emory Law Journal

The competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to …

How Grand Jury Secrecy And Bias Protects And Perpetuates Police-Suspect Impunity, Ilana M. Friedman

Law Faculty Scholarly Articles

This Article proceeds in four parts. Part I introduces the theoretical frameworks for various questions involving police-suspect grand juries, including the structure and function of contemporary grand juries, the law surrounding examinations into an officer’s use of force, modern prosecutorial influences, findings from social psychologists on the impacts of diversity on jury decision-making practices, and how police-suspect grand juries implicate unique political pressures.

Part II presents a description of original methods of data collection. To investigate this setting, forty-seven in-depth, semi-structured interviews with twenty-one respondents in five field sites around the country was conducted. Respondents included civilians and legal

professionals …

The Migration Of Abolition Theory, Matthew Boaz

Law Faculty Scholarly Articles

This Article considers whether and how theories of abolition developed by criminal law scholars are transferrable to the realm of immigration enforcement. A key question is how abolitionist principles might be employed in support of critiques of the United States’ immigration regulatory regime in the same way that these principles have been deployed in denouncing racialized policing and an injurious, industrialized prison system.

This Article makes two contributions: First, it identifies and illuminates a methodology adopted by critical and decarceral criminal law scholars: (i) denouncing the harms of a structural system, (ii) identifying the normative justification(s) for this system, and …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Ending The Presumption Of Reasonableness And Using Data To Reduce Sentencing Disparities, Brandon Mordue

Journal of Criminal Law and Criminology

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. …

Police Misconduct: Combatting The Complicity Crisis, Eric Arnold

Journal of Criminal Law and Criminology

This Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that …

Justice Ginsburg's Criminal Justice Legacy: Fair Tribunals, Fair Punishment, Sandra Guerra Thompson, Samantha Medlin

Journal of Criminal Law and Criminology

Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in …

Towards A Federalism(S) Framework Of Punishment, Sheldon A. Evans

Journal of Criminal Law and Criminology

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues …

Military Justice: The Forgotten Jurisdiction In Capital Punishment, Erica C. Medley

Journal of Criminal Law and Criminology

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. …

Sentencing Insurrection, Kevin Lapp

Journal of Criminal Law and Criminology

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they …

Proof Beyond A Reasonable Doubt Doesn't Exist: Except As An Emergent Property Of A Complex Adaptive System, Ronald J. Allen, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary …

Probation Without A Home: How Probation Maintains Barriers To Successful Completion While Homeless, Olivia K. Babin

Journal of Criminal Law and Criminology

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. …

Institutional Structures Of Penal Inequality, Alexandra Natapoff

Journal of Criminal Law and Criminology

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger …

Accommodating Disabilities During Arrests: Toward A Model Law To Improve Police Response To Mental Health Crisis, Michael Harel

Emory International Law Review

Policing people with mental illness (PWMI) presents a persistent global challenge. Although PWMI do not have a greater propensity for violence, they are disproportionately killed during police encounters. Using Australia as a case study, this Comment argues that use-of-force laws are inadequate in these situations because they defer excessively to officer discretion—failing to account for how officers often escalate encounters with PWMI by neglecting appropriate crisis-response tactics or by misperceiving PWMI behavior as violent, even when that behavior reflects mental health symptoms rather than actual threats. Current legal standards often excuse such perceptions, but properly trained officers should be expected …

De-Policing: An Updated Empirical Analysis Of Crime And Federal Police Reform, Stephen Rushin, Griffin Sims Edwards

Faculty Publications & Other Works

This Article builds on prior work by empirically analyzing the effect of federal intervention in local police departments on crime and clearance rates, using updated data and methodologies.

Congress passed 34 U.S.C. § 12601 (formerly 42 U.S.C. § 14141) in 1994 to give the United States Attorney General the authority to seek equitable relief against local and state law enforcement agencies engaged in patterns or practices of misconduct. Since its passage, the Department of Justice has investigated and intervened into dozens of American police departments, including some of the largest police departments in the country. Federal intervention represents one of …

Limits On Traffic Stops: Saving Lives By Constraining Police Authority, Jeannine Bell, Stephen Rushin

Faculty Publications & Other Works

This Article considers how policymakers can more effectively constrain police authority during traffic stops to reduce racial disparities and prevent unnecessary violence.

We begin by chronicling the power granted to police officers during traffic enforcement and the harms generated by this discretionary power. Under existing criminal procedure, police officers have considerable authority to stop motorists for any technical violation of the traffic code, even if the stated justification is a pretext for investigating an unrelated hunch or suspicion. After stopping a motorist, existing doctrine gives police the ability to question them, search their vehicles under numerous circumstances, arrest drivers for …