Digital Commons Network^™

Race And Death Sentencing For Oklahoma Homicides Committed Between 1990 And 2012, Glenn L. Pierce, Michael L. Radelet, Susan Sharp

Journal of Criminal Law and Criminology

This Article examines 4,668 Oklahoma homicide cases with an identified suspect that occurred during a twenty-three year period between January 1, 1990, and December 31, 2012. Among these, we identified 153 cases that ended with a death sentence. Overall we found that while the defendant’s race did not correlate with a death sentence, there was a strong correlation with the race of the victim, with cases with white victims significantly more likely to end with a death sentence than cases with non-white victims. Homicides with female victims were also more likely to result in a death sentence than other cases. …

The Rhetoric Of Abolition: Continuity And Change In The Struggle Against America's Death Penalty, 1900-2010, Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, Keshav Pant

Journal of Criminal Law and Criminology

This article seeks to understand when, how, and where the framing of arguments against capital punishment has changed. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas. Each is located in a different region of the country, and each has its own distinctive death penalty history. We studied the framing of arguments against the death penalty from 1900 to 2010. Our study suggests that the rhetorical reframing of the campaign against capital punishment that has occurred at the national level has had deep resonance at …

The Exercise Of Power In Prison Organizations And Implications For Legitimacy, John Wooldredge, Benjamin Steiner

Journal of Criminal Law and Criminology

Extrapolating from Bottoms and Tankebe’s framework for a social scientific understanding of “legitimacy,” we argue that differences in how correctional officers exercise “power” over prisoners can potentially impact their rightful claims to legitimate authority. Given the implications of this argument for the “cultivation” of legitimacy (as discussed by Weber), the study described here focused on (a) individual and prison level effects on the degree to which officers generally rely on different power bases when exercising their authority, and (b) whether more or less reliance on different power bases at the facility level impacts prisoners’ general perceptions of officers as legitimate …

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Journal of Criminal Law and Criminology

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty …

The Nature And Function Of Prosecutorial Power, Jordan A. Sklansky

Journal of Criminal Law and Criminology

The key to the growing prominence of prosecutors, both in the United States and elsewhere, lies in the prosecutor’s preeminent ability to bridge organizational and conceptual divides in criminal justice. Above all else, prosecutors are mediating figures, straddling the frontiers between adversarial and inquisitorial justice, between the police and the courts, and between law and discretion. By blurring these boundaries, prosecutors provide the criminal justice system with three different kinds of flexibility—ideological, institutional, and operational—and they strengthen their own hands in a legal culture that increasingly disfavors institutional rigidity and hard-and-fast commitments. At the same time, though, the mediating role …

Secular Dissent: Protecting Non-Believers From Coercive Religious Parole Programs, Phillip Grudzina

Journal of Criminal Law and Criminology

It is common practice for states to contract with third party organizations to run their parole rehabilitation programs. A majority of these organizations emphasize religious themes as a means of recovery from alcohol and substance abuse problems. However, for parolees who reject a belief in God, there are rarely any secular alternatives available. Those whom object are often given the choice between forced participation in religious activities or revocation of their parole. For years, courts have held that such practices violate parolees’ First Amendment rights. Nonetheless, most states have failed to implement policies to prevent such violations from reoccurring. Due …

Recidivism And Time Served In Prison, Daniel P. Mears, Joshua C. Cochran, William D. Bales, Avinash S. Bhati

Journal of Criminal Law and Criminology

A justification for lengthier stays in prison stems from the belief that spending more time in prison reduces recidivism. Extant studies, however, have provided limited evidence for that belief and, indeed, suggest the effect of time served may be minimal. Few studies have employed rigorous methodological approaches, examined time spans of more than one to two years, or investigated the potential for the relationship between recidivism and time served to be curvilinear. Drawing on prior scholarship, this paper identifies three sets of hypotheses about the functional form of the time served and recidivism relationship. Using generalized propensity score analysis to …

Parental Kidnapping, Criminal Contempt Of Court, And The Double Jeopardy Clause: A Recommendation For State Courts, Valerie Brummel

Journal of Criminal Law and Criminology

In states such as Illinois, courts invoke the Double Jeopardy Clause of the United States Constitution to protect parental kidnappers who have already been held in contempt of court from subsequent prosecution under state child kidnapping laws. State courts should not apply the Double Jeopardy Clause to protect parental kidnappers; instead, they should follow the example of the Ohio state courts by recognizing that contempt of court and child kidnapping are not the same crime for double jeopardy purposes. The many differences between the crimes of contempt and parental kidnapping, the disparity between sanctions delivered by the court for contempt …

The Foreign Corrupt Practices Act: Unbridled Enforcement And Flawed Culpability Standards Deter Smes From Entering The Global Marketplace, Stephen S. Laudone

Journal of Criminal Law and Criminology

In the wake of the Watergate Scandal, which exposed a variety of corporate as well as political abuses, the Securities and Exchange Commission (SEC) discovered that a staggering number of large corporations had made questionable or illegal payments exceeding $300 million to foreign government officials, politicians, and political parties. In 1977, Congress passed the Foreign Corrupt Practices Act (FCPA) to curb the negative impact of these corrupt payments on United States foreign policy objectives regarding the promotion of democracy and the free market system.

In the decades since the passage of the FCPA, the government has expanded the use of …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Journal of Criminal Law and Criminology

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

Looking Backwards At Old Cases: When Science Moves Forward, Jules Epstein

Journal of Criminal Law and Criminology

Forensic evidence—be it in the form of science-derived analyses such as DNA profiling or drug identification, or in more subjective analyses such as pattern or impression [latent print, handwriting, firearms] examinations—is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in Maryland v. Kulbicki, addresses the inadequacies of the Court’s analysis, and suggests some factors for judges confronted …

“Half Cocked”: The Persistence Of Anachronism And Presentism In The Academic Debate Over The Second Amendment, Saul Cornell

Journal of Criminal Law and Criminology

James Lindgren’s recent forward to The Journal of Criminal Law and Criminology’s 2015 symposium on “The Past and Future of Guns,” purports to be a neutral and scholarly account of the current state of the debate on the meaning of the Second Amendment. Lindgren’s introductory essay fails to achieve both of these goals. Rather than survey the pre-Heller scholarship in a comprehensive and even-handed manner, Lindgren provides a distorted and superficial account of the historical literature. He compounds this error by ignoring the vast post-Heller scholarly literature, failing to note that much of this recent body of scholarship has been …

Cinderella Story? The Social Production Of A Forensic “Science”, Gary Edmond, Emma Cunliffe

Journal of Criminal Law and Criminology

The last decade has witnessed unprecedented criticism of the forensic sciences from academic commentators and authoritative scientific and technical organizations. Simultaneously, podiatrists have begun to promote themselves as forensic scientists, capable of assisting investigators and courts in their endeavors to identify offenders. This article traces the emergence of forensic podiatry, particularly forensic gait analysis. Forensic gait analysis is a practice that involves comparing persons of interest in crime-related images (such as CCTV and surveillance recordings) with reference images of suspects, where the primary focus is on movement and posture. It tends to be applied when other techniques, such as the …

Missing White Woman Syndrome: An Empirical Analysis Of Race And Gender Disparities In Online News Coverage Of Missing Persons, Zach Sommers

Journal of Criminal Law and Criminology

At any given time, there are tens of thousands of Americans categorized as “missing” by law enforcement. However, only a fraction of those individuals receive news coverage, leading some commentators to hypothesize that missing persons with certain characteristics are more likely to garner media attention than others: namely, white women and girls. Empirical investigation into this theory is surprisingly sparse and also limited in multiple ways. This paper aims to fill those voids by empirically exploring whether that inequality, dubbed “Missing White Woman Syndrome,” truly exists. Based on a multi-method approach using Federal Bureau of Investigation data and data culled …

The Eighth Amendment's Milieu: Penal Reform In The Late Eighteenth Century, Erin E. Braatz

Journal of Criminal Law and Criminology

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which …

Product Counterfeiting Legislation In The United States: A Review And Assessment Of Characteristics, Remedies, And Penalties, Jeremy M. Wilson Ph.D, Brandon A. Sullivan Ph.D, Travis Johnson, Roy Fenoff Ph.D, Kari Kammel

Journal of Criminal Law and Criminology

Product counterfeiting crimes have detrimental effects on consumers, brand owners, public health, the economy, and even national security. Over time, as product counterfeiting crimes and the response to them have evolved, U.S. federal legislation has developed and state legislation has followed suit, but with considerable variation across the states. The purpose of this article is to place product counterfeiting in the context of intellectual property rights, provide a historical review of relevant federal legislation, and systematically examine the extent to which state laws differ in terms of characteristics, remedies, and penalties. Additionally, we calculate indices of civil and criminal protections …

A Victim Of Abuse Should Still Have A Castle: The Applicability Of The Castle Doctrine To Instances Of Domestic Violence, Cristina G. Messerschmidt

Journal of Criminal Law and Criminology

In light of a nation-wide discussion about expanding self-defense laws, as well as an increased recognition of domestic violence, the phrases “stand your ground” and “retreat to the wall” have taken on entirely new meanings. In cases of domestic abuse, which happen largely inside the home, self-defense laws become more difficult to navigate when victims retaliate against their abusers. Generally, individuals using deadly force against their attackers cannot do so until they “retreat to the wall”—until they do everything possible to safely escape the attack and avoid taking a human life. It is then, and only then, that they are …

The Long Goodbye: After The Innocence Movement, Does The Attorney-Client Relationship Ever End?, Lara A. Bazelon

Journal of Criminal Law and Criminology

Inspired by the Innocence Movement, the American Bar Association has placed an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new rule imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent.

The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in wrongful conviction cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and …

Police Body Cameras In Large Police Departments, Barak Ariel

Journal of Criminal Law and Criminology

Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn …

Criminalizing Terrorism In Canada: Investigating The Sentencing Outcomes Of Terrorist Offenders From 1963 To 2010, Joanna Amirault, Martin Bouchard, Graham Farrell, Martin A. Andresen

Journal of Criminal Law and Criminology

Despite having endured significant terrorist incidents over the past 50 years, terrorism-specific offenses were not criminalized in Canada until the implementation of the Anti-Terrorism Act (ATA) in 2001. One of the primary goals of this legislation was to provide law enforcement with the tools necessary to proactively prevent terrorist incidents; however, the effectiveness of these new legal measures in preventing terrorist incidents, and the potential for the increased punishment of offenders sanctioned under them, remains unclear. Using a sample of convicted terrorist offenders (n = 153) from the Officially Adjudicated Terrorists in Canada (OATC) dataset, the current study investigates …

What Is Wrong With Sex In Authority Relations? A Study In Law And Social Theory, Galia Schneebaum

Journal of Criminal Law and Criminology

Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

Journal of Criminal Law and Criminology

No abstract provided.

Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care, Sarah Halbach

Journal of Criminal Law and Criminology

This Comment looks closely at the reasoning behind two recent federal court opinions granting transgender prisoners access to hormone therapy and sex-reassignment surgery. Although both opinions were decided under the Eighth Amendment’s ban on cruel and unusual punishment, which does not expressly prohibit discrimination based on gender identity, a careful look at the courts’ reasoning suggests that they were influenced by the apparent discrimination against the transgender plaintiffs. This Comment argues that future transgender prisoners may be able to develop an antidiscrimination doctrine within the Eighth Amendment by framing their Eighth Amendment medical claims in terms of discrimination based on …

Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform, Cristina Law

Journal of Criminal Law and Criminology

Prisoners face many barriers when petitioning for federal habeas corpus relief, especially when asserting ineffective assistance of trial counsel claims. The Supreme Court’s decision in Trevino v. Thaler attempted to lower these barriers by carving out a narrow exception to the procedural default rule. Although a step in the right direction, this narrow exception fell short of meaningful habeas corpus reform. This Comment argues that although the Supreme Court’s decision in Trevino appears to guarantee habeas corpus petitioners the ability to raise ineffective assistance of trial counsel claims in federal court, it is unlikely to provide prisoners meaningful opportunities to …

Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin

Journal of Criminal Law and Criminology

Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …

Sentencing And Interbranch Dialogue, Eric S. Fish

Journal of Criminal Law and Criminology

American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this …

Technology And The Guilty Mind: When Do Technology Providers Become Criminal Accomplices, Benton Martin, Jeremiah Newhall

Journal of Criminal Law and Criminology

The creators of today’s most successful technologies share an important willingness to push the envelope—a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuit of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers. …

Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die, Meredith Martin Rountree

Journal of Criminal Law and Criminology

In the United States, different people have different rights to die. This Article traces the origins of death-sentenced prisoners’ ability to enlist assistance in dying and compares it to the considerably more circumscribed right held by people with serious illness. It uses empirical research on “volunteers,” death-sentenced prisoners who sought execution, to argue that the legal standard for adjudicating their requests to hasten execution should be changed. Empirical evidence suggests many of the concerns governing the regulation of assisted dying in the medical context are present in the death row case. This Article therefore urges courts to use a balancing …

Correctional Education Can Make A Greater Impact On Recidivism By Supporting Adult Inmates With Learning Disabilities, Angela Koo

Journal of Criminal Law and Criminology

This Comment brings attention to a group that is overlooked within our prisons—adult inmates with learning disabilities. These inmates currently face challenges in receiving appropriate educational programming. Recognizing that several studies support the proposition that education reduces recidivism, this Comment argues that correctional education programs must make reforms to accommodate adult inmates with learning disabilities in order for education to fully impact recidivism rates.

Reasonable Doubt And Moral Elements, Youngjae Lee

Journal of Criminal Law and Criminology

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …