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Using Electronic Monitoring To Enhance The Protection Offered By Civil Protection Orders In Cases Of Domestic Violence: A New Technology Offers New Protection, Nicole Allaband

Richmond Journal of Law & Technology

Domestic violence is a widespread epidemic in the United States. Each year, between 1.8 and 4 million domestic violence incidents are reported. One in three women will experience some form of domestic violence in her lifetime. Civil protection orders (also known as protection from abuse orders or restraining orders) are a common remedy employed by the courts to prevent future violence and protect survivors of domestic violence. These orders can be tailored to fit the circumstances, but frequently include no contact provisions. However, no contact provisions can be difficult to enforce because the abuser is usually intimately familiar with the …

Trammel V. United States: Bad History, Bad Policy, And Bad Law, Michael W. Mullane

Maine Law Review

In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment …

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of …

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Washington and Lee Law Review

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …

The Idea Of "The Criminal Justice System", Sara Mayeux

Vanderbilt Law School Faculty Publications

The phrase "the criminal justice system " is ubiquitous in discussions of criminal law, policy, and punishment in the United States-so ubiquitous that, at least in colloquial use, almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic "system, " became pervasive only in the 1960s. This essay contextualizes the idea of "the criminal justice system" within the longer history of systems theories more generally, drawing on recent scholarship in intellectual history and the history of science. The essay then recounts how that longer history converged, …

Integrating The Access To Justice Movement, Lauren Sudeall

Vanderbilt Law School Faculty Publications

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement - who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define "justice," and whether it would apply only to the civil justice system. Although the phrase "access to justice" is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in the interpretation is an opportunity to engage …

The Persistence Of Fatal Police Taserings In 2017, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings are a persistent phenomenon in the United States. Every year dozens of Americans are fatally tasered by our police.This article looks at the number of deaths cause by police tasering during 2017.

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Scholarly Articles

None available.

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Sorting Out White-Collar Crime, Miriam H. Baer

Faculty Scholarship

Our federal criminal code defines crimes, but declines to sort its fraud offenses according to degrees of harm or culpability. Although state prosecutors routinely charge crimes such as homicide or robbery in varying degrees, the federal code’s core fraud statutes are noticeably flat. There is no such thing as first- or second-degree fraud in the federal code.

Amidst a roiling debate as to whether the federal government overcriminalizes or underenforces white-collar crime, scholars have lost sight of the federal code’s lack of gradation. This Article seeks to remedy this neglect, particularly in regard to fraud crimes. Drawing examples from federal …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Publications

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

Falcon V. State: Should The Florida Supreme Court Have Opened The Door For Sentencing Review Of Juveniles Sentenced To Life In Prison For Murder?, Jamie L. Wilson

St. Thomas Law Review

This Comment addresses the implications on victim's families and society regarding the resentencing and future sentencing of juveniles who have been convicted of murder. Specifically, this Comment will focus on the factors judges are required to consider before a life sentence is imposed, while proposing a solution to balance the factors in order to ensure victim's rights are not overlooked. Part II explores the required juvenile sentencing factors mandated by the United States Supreme Court in Miller, and further explores Florida's response as evidenced in Falcon, Atwell v. State, and Landrum v. State. Part II further discusses Florida's previous statutory …

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

Life, Liberty, And Trade Secrets: Intellectual Property In The Criminal Justice System, Rebecca Wexler

Faculty Scholarship

The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises undertheorized tensions between life, liberty, and property interests.

This Article offers the first wide-ranging account of trade secret evidence in criminal cases and …

The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones

Journal of Criminal Law and Criminology

The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against …

A Broken Windows Theory Of Sexual Assault Enforcement, Erin Sheley

Journal of Criminal Law and Criminology

The law of sexual assault is in conflict. Jurisdictions struggle with the conceptual shift from thinking of rape as forcible sex to a broader understanding that turns on the meaning of consent. Due to resource, evidentiary, and reporting problems there is a mismatch between the new substantive understanding of sexual assault and its actual enforcement. This has led to something of a cultural war by survivors and many women generally against the idea of “rape culture,” which runs the risk of categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive. This article proposes that lessons …

Virtual Shackles: Electronic Surveillance And The Adultification Of Juvenile Courts, Chaz Arnett

Journal of Criminal Law and Criminology

In recent years, there has been a groundswell of attention directed at problems within the American criminal justice system, led in part by Michelle Alexander’s groundbreaking book, The New Jim Crow, and most recently through the efforts of the Black Lives Matter movement. This increased focus on the harms of over-incarceration and net-widening, has had the benefit of introducing to the public other practices utilized in the criminal justice system, such as the widespread use of ankle monitors to track the location of defendants and released offenders. Yet, despite this greater attention, legal scholarship has only recently begun to grapple …

Parental Prisoners: The Incarcerated Mother's Constitutional Right To Parent, Emily Halter

Journal of Criminal Law and Criminology

The United States prison population has grown at alarming and unprecedented rates in recent decades, with certain states imprisoning more individuals than entire countries. Recently, the number of incarcerated women has climbed faster than that of men. The high rate of female incarceration has devastating effects on society, as many women are mothers and primary caregivers. Furthermore, every year, a number of mothers give birth in prison. When this happens, the mother’s family and loved ones are often not permitted to be present. The mother gives birth in a room with only medical personnel and prison guards. She then generally …

Reduced Culpability Without Reduced Punishment: A Case For Why Lead Poisoning Should Be Considered A Mitigating Factor In Criminal Sentencing, Eleanor Kittilstad

Journal of Criminal Law and Criminology

The water crisis in Flint, Michigan, where residents discovered dangerous levels of lead in their water supply in 2015, has continued to unfold over the past three years and has brought the damaging effects of lead exposure to national attention. When developing children are exposed to even low levels of lead, they are at risk of developing cognitive impairments—disorders that cause aggressive behavior and diminished intellectual functioning. This Comment seeks to bring criminal law into the conversation about lead exposure and its damaging effects. Researchers have found that children exposed to lead have a higher risk of engaging in criminal …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Journal of Criminal Law and Criminology

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

Technological Incarceration And The End Of The Prison Crisis, Mirko Bagaric, Dan Hunter, Gabrielle Wolf

Journal of Criminal Law and Criminology

The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve …

A More Just System Of Juvenile Justice: Creating A New Standard Of Accountability For Juveniles In Illinois, Brooke Troutman

Journal of Criminal Law and Criminology

For over a century, America’s legal system has made substantial reforms to change its treatment of adolescents. Every day, we see that our legal system treats adolescents differently from their adult counterparts. With regards to driving privileges, voting rights, and the ability to drink, our laws recognize that adults and adolescents are different and therefore require a different set of standards. America extended this treatment to the realm of juvenile justice in 1899, when Cook County, Illinois, created the country’s first juvenile court. Originating in this court was the overarching purpose of America’s juvenile justice system—rehabilitation of juvenile offenders. Though …

The Thin Blue Line From Crime To Punishment, Alice Ristroph

Journal of Criminal Law and Criminology

Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

The Effects Of Body-Worn Cameras On Police Activity And Police-Citizen Encounters: A Randomized Controlled Trial, Anthony A. Braga, William H. Sousa, James R. Coldren, Jr., Denise Rodriguez

Journal of Criminal Law and Criminology

Many have suggested that placing body-worn cameras (BWCs) on police officers improves the civility of police-citizen encounters and enhances citizen perceptions of police transparency and legitimacy. In response, many police departments have adopted this technology to address public concerns over the quality of policing in their communities. The existing program evaluation evidence on the intended and unintended consequences of outfitting police officers with BWCs is still developing, however. This study reports the findings of a randomized controlled trial involving more than 400 police officers in Las Vegas, Nevada. We find that officers equipped with body-worn cameras generated fewer complaints and …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Josh Gupta-Kagan

Faculty Publications

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Washington and Lee Law Review

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …