Digital Commons Network^™

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Gundy V. United States: Breathing New (And Unexpected) Life Into The Nondelegation Doctrine, Brandon K. Wharton

Maryland Law Review

No abstract provided.

Rap As A Proxy For Blackness: How The Prosecution Of Rap Lyrics Continues To Unconstitutionally Restrict Free Speech Rights, Austin Vining

University of Florida Journal of Law & Public Policy

No abstract provided.

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

Black Lives Matter: Trayvon Martin, The Abolition Of Juvenile Justice And #Blackyouthmatter, Nancy E. Dowd

University of Florida Journal of Law & Public Policy

No abstract provided.

From Authoritarian Police State To Black-Inclusive Democracy, Melody R. Webb

University of Florida Journal of Law & Public Policy

No abstract provided.

Don't Make A Run For It: Rethinking Illinois V. Wardlow In Light Of Police Shootings And The Nature Of Reasonable Suspicion, Edith Perez

University of Florida Journal of Law & Public Policy

No abstract provided.

Finding A New Path: Using The Fifteenth Amendment To Protect The Voting Rights Of Returning Citizens, Ebony Love

University of Florida Journal of Law & Public Policy

No abstract provided.

Overrepresented Yet Overlooked: Lgbtq Survivors Of Trafficking And The Imperative For The Nordic Approach To Sex Trafficking Laws In The United States, Claire Mooney

Cardozo Journal of Equal Rights & Social Justice

The note argues that LGBTQ survivors of human trafficking are disproportionately affected by inadequate legal frameworks and societal discrimination. It advocates for the adoption of the Nordic Model in the U.S., which criminalizes the purchase of sex while decriminalizing its sale, to better address the needs of LGBTQ survivors and align with international human rights standards.

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.

Can The International Criminal Court Succeed? An Analysis Of The Empirical Evidence Of Violence Prevention, Stuart Ford

Loyola of Los Angeles International and Comparative Law Review

Despite significant optimism about the future of the International Criminal Court (“ICC”) during its early years, recently there has been growing criticism of it by both scholars and governments. As a result, there appears to be more doubt about the ICC’s ability to succeed now than at any other point in its history. So, are the critics correct? Is the ICC failing? No. This Article argues that, not only can the ICC succeed, there is strong evidence that it is already succeeding. It analyzes several recent empirical articles that have convincingly demonstrated that the ICC prevents serious violations of international …

Ethical Considerations For Prosecutors: How Recent Advancements Have Changed The Face Of Prosecution, Joshua L. Sandoval

St. Mary's Journal on Legal Malpractice & Ethics

The prosecutor acts as a minister of justice with sweeping discretion to charge an individual with a crime, plea a case in a manner supported by the strength of the evidence, proceed to trial on a case, and even dismiss a case. He must balance the interest of the victim, the community, and the constitutional rights of the accused in every decision he makes.

This article will explore the role of the American prosecutor and discuss various ethical issues encountered on a daily basis. After a brief introduction, the author will succinctly discuss the history of the prosecutor and will …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Beyond Unreasonable, John D. Inazu

Scholarship@WashULaw

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions “beyond a reasonable doubt,” and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale—we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting …

#Livingwhileblack: Blackness As Nuisance, Taja-Nia Y. Henderson, Jamila Jefferson-Jones

American University Law Review

No abstract provided.

Rewarding Bad Behavior In Initial-Review Collateral Proceedings: Teague Says Yes, Due Process Says No, Bethany Callahan

American University Law Review

For centuries, criminal defendants have had the opportunity to challenge their convictions with a writ of habeas corpus. The Founding Fathers described the writ as a path to liberation for those imprisoned without sufficient cause. It is a critical safeguard of individual freedom against lawless state action in criminal proceedings. However, with every safeguard comes a loophole.

The finality of state court decisions is revered in the American criminal justice system. It is no surprise, then, that the Supreme Court has approached the issue of whether to retroactively apply new laws to cases already finalized on direct review with trepidation. …

Retribution As Ancient Artifact And Modern Malady, Molly J. Walker Wilson

Lewis & Clark Law Review

One of the oldest and most entrenched goals of punishment is retribution, which is the idea that inflicting pain on someone who has committed a wrong is a worthwhile goal, regardless of any other benefits or harms that may result. Retribution has been the justification for increasingly punitive policies in the United States, the effect of which has decimated communities of color, strapped taxpayers with huge associated costs, and increased crime rates. It is difficult to understand why we perpetuate harmful policies based on “just deserts” until we consider that the foundation of these policies is moral outrage—a powerful, automatic, …

The Dichotomy Between Overcriminalization And Underregulation, Ellen S. Podgor

American University Law Review

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the …

Adultery, Infidelity, And Consensual Non-Monogamy, Edward D. Stein

Articles

Thirty-eight states have laws in place that relate to adultery. Though criminal laws against adultery are not frequently enforced, the network of criminal laws, tort laws, and domestic relations laws related to adultery disincentivize extra-marital sex, an effect heightened by the stigma and other social attitudes associated with adultery. This Essay argues that the socio-legal state of affairs concerning adultery is bad for marriages (and similar relationships), bad for public health, and is simply bad public policy. This is in part because the law treats infidelity-having sex with someone other than your primary partner without his or her consent or …

Equality Is A Brokered Idea, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

The Costs And Benefits Of Affordable Housing: A Partial Solution To The Conflict Of Competing Goods, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

In this Article, I extend a prior inquiry into the costs borne by society due to the lack of enough decent, affordable housing units. I previously outlined those costs and suggested a combination of public cost savings and public and private benefits that would accrue by providing that housing. I posited that the savings and benefits, in the aggregate, could at least substantially offset the costs and might even exceed them. If that is so, I queried, why has society not produced the needed units? In answering that question, I offered several possible responses: inadequate resources, racism, and public choice …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

In Defense Of Empiricism In Family Law, Elizabeth S. Scott

Faculty Scholarship

It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication …

Coming To Terms With Wartime Collaboration: Post-Conflict Processes & Legal Challenges, Shane Darcy

Brooklyn Journal of International Law

The phenomenon of collaboration during wartime is as old as war itself. During situations of armed conflict, civilians or combatants belonging to one party to the conflict frequently provide assistance to the opposing side in various ways, such as by disclosing valuable information, defecting and fighting for the enemy, engaging in propaganda, or providing administrative support to an occupying power. Such acts of collaboration have been punished harshly, with violent retribution often directed at alleged collaborators during armed conflict, while states and at times non-state actors have prosecuted and punished collaboration as treason or related offenses in times of war. …

Reducing The Governance Gap For Corporate Complicity In International Crimes, Seunghyun Nam

Brooklyn Journal of International Law

With increasing reports of corporations involved in serious human rights abuses that amount to international crimes, there are greater calls for states to hold these corporations accountable. Still, many obstacles and challenges remain when it comes to holding corporations accountable. Complex corporate structures, the extraterritorial dimension of the abuses, competition among states and businesses, lack of institutional capacity on the part of states, and lack of legal coordination among states collectively create an impunity gap. The case studies of the situation in Burma and the Democratic Republic of Congo involving foreign companies aim to illustrate this governance gap. With growing …

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue …

Extraordinary And Compelling: Madison V. Alabama And The Issue Of Prison Reform For Elderly Prisoners, Jennifer Leto

University of Miami Race & Social Justice Law Review

No abstract provided.

From Decarceration To E-Carceration, Chaz Arnett

Cardozo Law Review

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to theircommunities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of …

A Modest Proposal: The Federal Government Should Use Firing Squads To Execute Federal Death Row Inmates, Stephanie Moran

University of Miami Law Review

The Eighth Amendment prohibits cruel and unusual punishment in the criminal justice system. As the federal government looks to reinstate the death penalty, this Note argues that it should include firing squad as an option for carrying out executions. While firing squads may shock the senses, this Note argues that they are in fact the only way to comport with the requirements of the Eighth Amendment.