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Articles 1 - 25 of 25
Full-Text Articles in Law
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Brooklyn Journal of International Law
For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …
Embracing The End: A Comparative Analysis Of Medical Aid In Dying In Canada And The United States, Joel Krinsky
Embracing The End: A Comparative Analysis Of Medical Aid In Dying In Canada And The United States, Joel Krinsky
Brooklyn Journal of International Law
Since the late nineteenth century, debate has unfolded over the use of euthanasia and physician-assisted death to alleviate the suffering of individuals with medical illnesses. The controversy surrounding the issue persists and its implications are significant. While most countries prohibit Aid in Dying (AID), legalization of the practice has expanded globally in recent years. Canada and the United States (US) are two such jurisdictions that have expanded access to AID. Canada has federally legalized the practice, which the country refers to as Medical Aid in Dying (MAID), and in 2021, the country expanded the eligibility criteria for individuals seeking access …
A Civil Shame: The Failure To Protect Due Process In Discretionary Immigration Bond Hearings, Stacy L. Brustin
A Civil Shame: The Failure To Protect Due Process In Discretionary Immigration Bond Hearings, Stacy L. Brustin
Brooklyn Law Review
Over the last four years, the US Supreme Court has granted certiorari in four immigration bond review cases. The sheer number of cases the Court has recently considered underscores the significance of this area of immigration law. Each case centers on whether the Immigration and Nationality Act or the Constitution mandates a bond review hearing after prolonged detention. Yet these cases leave unresolved the issue of whether initial bond hearings themselves meet the due process threshold required of civil confinement proceedings. Federal circuit and district courts have addressed aspects of this question and found procedural due process violations. However, most …
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
Journal of Law and Policy
The no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated …
Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla
Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla
Journal of Law and Policy
This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to …
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
Faculty Scholarship
No abstract provided.
Defense Counsel's Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts
Defense Counsel's Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts
Faculty Scholarship
No abstract provided.
The Role Of The "Victim" In The Criminal Legal System, Kate Mogulescu
The Role Of The "Victim" In The Criminal Legal System, Kate Mogulescu
Faculty Scholarship
No abstract provided.
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Journal of Law and Policy
American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Journal of Law and Policy
The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …
United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner
United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner
Journal of Law and Policy
In 2011, environmentalist lawyer Steven Donziger was sued in a retaliatory lawsuit by the oil company Chevron, following his securement of a multibillion-dollar award against the company for its environmental harms in Ecuador. In a case rife with judicial impropriety, Donziger was ultimately charged with criminal contempt of court and his charges were prosecuted by a private attorney. These suits exemplify the growing problem of powerful corporations using legal tactics to retaliate against activists and undermine the legitimacy of the legal system. Federal judges contribute to the problem by misusing the extensive power they hold in distinguishing criminal from civil …
Foreword: The Role Of The “Victim” In The Criminal Legal System, Kate Mogulescu
Foreword: The Role Of The “Victim” In The Criminal Legal System, Kate Mogulescu
Brooklyn Law Review
On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system. Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process? Where does the issue of victimization emerge, how is it received and what should the system’s response be? Who gets a voice? And when? Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy? The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion …
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Brooklyn Law Review
This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed …
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Brooklyn Law Review
The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.
Parole, Victim Impact Evidence, And Race, Alexis Karteron
Parole, Victim Impact Evidence, And Race, Alexis Karteron
Brooklyn Law Review
Parole offers the possibility of release for a substantial number of incarcerated people in the United States, the world’s largest jailer, but is seriously understudied. In particular, the role of victims and race in the parole decision-making process deserves attention. Decades of research has shown that the “race-of-victim effect” leads to more punitive sentences when white victimhood is at issue. In the parole context, the ubiquity of victim impact statements and the emotional responses they trigger raise the likelihood that the “race-of-victim effect” plagues parole decision-making as well. This essay calls for greater data collection and scrutiny into the role …
Rotten Social Background And Mass Incarceration: Who Is A Victim?, Steven Zeidman
Rotten Social Background And Mass Incarceration: Who Is A Victim?, Steven Zeidman
Brooklyn Law Review
Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined …
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
Brooklyn Law Review
Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important …
What Are Victim Impact Statements For?, Susan A. Bandes
What Are Victim Impact Statements For?, Susan A. Bandes
Brooklyn Law Review
In Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and …
Giving Meaning To The Apostrophe In Victim[’]S Rights, Margaret Garvin
Giving Meaning To The Apostrophe In Victim[’]S Rights, Margaret Garvin
Brooklyn Law Review
There is a lack of consistency in how courts interpret the use or placement of an apostrophe on “victim.” While this may seem like a minor grammatical or typological error, it has a tremendous effect on victim’s rights, as it virtually erases the victim due to the confusion over the ownership of said rights. This essay analyzes how the placement of the apostrophe, in cases dealing with subpoenas duces tecum, have led courts to interpret victim rights in multiple ways, but all with the same outcome—excluding the actual victim from consideration. This causes the actual victims, even when the court …
Defense Counsel’S Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts
Defense Counsel’S Cross Purposes: Prior Conviction Impeachment Of Prosecution Witnesses, Anna Roberts
Brooklyn Law Review
A broad scholarly coalition supports the prohibition or diminution of the impeachment of criminal defendants with their convictions. Yet scholars should pay more attention to the flipside arrangement: impeachment of prosecution witnesses by defense counsel. First, because those engaged in reform efforts need to resolve the competing interests: constitutional arguments on behalf of the defense, but, on the other hand, concerns about a tool that (regardless of the nature of the witness) risks reinforcing biases and stereotypes. Second, because the impossibility of adequate resolution is itself important to note. Whether one considers the conflicting values of rule-makers deciding whether to …
Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning
Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning
Brooklyn Law Review
Defendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to …
Keeping Guns In The Hands Of Abusive Partners: Prosecutorial And Judicial Subversion Of Federal Firearms Laws, Bonnie Carlson
Keeping Guns In The Hands Of Abusive Partners: Prosecutorial And Judicial Subversion Of Federal Firearms Laws, Bonnie Carlson
Brooklyn Law Review
State actors are imbued with the power of the government to enforce and apply the law. When they use that power to instead inhibit a law’s enforcement, they are engaging in subversion. Subversion is problematic on its face: it frustrates legislative intent, creates confusion, and destabilizes the separation of powers foundational to our democracy. But subversion is particularly insidious when it is done to the detriment of vulnerable individuals. That is the case when state prosecutors and judges purposefully undermine federal law intended to keep firearms out of the hands of abusive partners. Guns and domestic violence can be a …
The Place Of The Prosecutor In Abolitionist Praxis, Cynthia Godsoe
The Place Of The Prosecutor In Abolitionist Praxis, Cynthia Godsoe
Faculty Scholarship
No abstract provided.
Released, But Not Free: The Unexonerated, Heidi Gilchrist
Released, But Not Free: The Unexonerated, Heidi Gilchrist
Faculty Scholarship
No abstract provided.
Read Thyself, Alice Ristroph