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Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahey Apr 2022

Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahey

Boston College Law Review

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED …


Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca J. Hamilton Apr 2022

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca J. Hamilton

Boston College Law Review

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platform-enabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …


Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg Apr 2022

Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg

Boston College Law Review

Most nations consider the protection of cultural material, such as historical monuments, archaeological sites, and antiquities, to be of utmost consequence. Yet, despite the near-universal importance of safeguarding cultural heritage, domestic protections for cultural material in the United States tend to be difficult to interpret. These ambiguities and gaps allow for continued exploitation and illicit trafficking of cultural heritage. This Note focuses on the legal structures in the United States that safeguard indigenous cultural material. After briefly discussing the rationale behind safeguarding objects of heritage, this Note explores the dominant federal statutes that protect cultural material: the National Historic Preservation …


Pornography Isn't The Problem: A Feminist Theoretical Perspective On The War Against Pornhub, Taylor Comerford Mar 2022

Pornography Isn't The Problem: A Feminist Theoretical Perspective On The War Against Pornhub, Taylor Comerford

Boston College Law Review

Over the last year, Pornhub and its parent company, MindGeek, ignited public outcry against the prevalence of content users posted to their sites featuring sexual violence, nonconsensual pornography, and sex trafficking. Activists, journalists, and legislators allege that Pornhub and similar pornography sites are apathetic toward the victims in these videos and photos while profiting from the ad revenue such content brings to their sites. In December 2021, Senator Josh Hawley proposed the Survivors of Human Trafficking Fight Back Act, proposing to add criminal penalties and a federal cause of action against websites that either post or refuse to remove criminal …


Evidence, Truth, And History In Atrocity Trials, Fergal Gaynor Mar 2022

Evidence, Truth, And History In Atrocity Trials, Fergal Gaynor

Boston College Law Review

This essay was delivered as the 2021 Holocaust and Human Rights Project Owen Kupferschmid Memorial Lecture. The Owen M. Kupferschmid Holocaust/Human Rights Project is named after its founder, a 1986 Boston College Law School graduate. Launched in 1984, the project’s goal was to ensure that the precedential value of Holocaust-related law is fully realized and applied to state-sponsored human rights violations today.


Scratching The "8-Ball": The Fourth Circuit's Approach To The First Step Act Misses The Mark, Matthew Baker Mar 2022

Scratching The "8-Ball": The Fourth Circuit's Approach To The First Step Act Misses The Mark, Matthew Baker

Boston College Law Review

On March 9, 2021, in United States v. Lancaster, the United States Court of Appeals for the Fourth Circuit held that a district court ruling on a First Step Act motion must consider intervening factual and legal developments when deciding whether to resentence an offender under the Act. In doing so, the Fourth Circuit exacerbated a circuit split regarding the proper scope of the First Step Act. Four circuits, led by the United States Court of Appeals for the Fifth Circuit, have taken the opposite position and do not allow their district courts to consider intervening circumstances at all. …


(Ven)Mo Money, (Ven)Mo Problems? How Money Laundering Permeates Peer-To-Peer Payment Platforms, Rohena Rajbhandari Feb 2022

(Ven)Mo Money, (Ven)Mo Problems? How Money Laundering Permeates Peer-To-Peer Payment Platforms, Rohena Rajbhandari

Boston College Law Review

In the last decade, new payment forms known as peer-to-peer (P2P) payments have become widely accepted and mainstream across the United States. Driven by young consumers, these innovative platforms overcame many barriers presented by traditional payment systems. With this innovation, however, comes increased potential for abuse. P2P platforms operate outside of pure banking transactions, allowing for quick payments through either fiat currency or cryptocurrency between individuals, making these applications ripe for criminal activity. Although the United States has robust money laundering laws, P2P platforms do not fully fit within their boundaries, allowing criminals to abuse the system to move and …


Doing Away With Disorderly Conduct, Rachel Moran Jan 2022

Doing Away With Disorderly Conduct, Rachel Moran

Boston College Law Review

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language. Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people. Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order. Although courts and scholars have criticized these laws for decades, none have …


Executing Defendants With Intellectual Disabilities: Unconstitutional In Theory, Persistent In Practice, Victoria E. Broderick Jan 2022

Executing Defendants With Intellectual Disabilities: Unconstitutional In Theory, Persistent In Practice, Victoria E. Broderick

Boston College Law Review

In 2002, in Atkins v. Virginia, the Supreme Court abolished the death penalty for defendants with intellectual disabilities. The Court held that executing individuals with intellectual disabilities is cruel and unusual punishment, violating the Eighth Amendment. The Court afforded the states the power to define intellectual disability for the purpose of death penalty eligibility. Post-Atkins cases reveal that the states have composed superficial and oversimplified definitions of intellectual disability. State definitions lack consistency and include nonclinical standards. As a result, courts continue to sentence defendants with intellectual disabilities to death. This Note argues that states should adopt a …


The Extraordinary Criminal Law Jurisprudence Of Justice Ralph Gants, Nancy Gertner Nov 2021

The Extraordinary Criminal Law Jurisprudence Of Justice Ralph Gants, Nancy Gertner

Boston College Law Review

The untimely passing of Chief Justice Ralph Gants represented a tremendous loss to the Massachusetts court system and communities throughout the Commonwealth. Ralph Gants positively impacted countless lives through his work both on and off the Supreme Judicial Court of Massachusetts. From his advocacy against minimum mandatory sentencing and his promotion of racial justice, to his efforts to advance eyewitness identification, first-degree murder theory, and Brady protections for criminal defendants, Chief Justice Gants’s legacy reflects the visionary grandeur with which he tackled every issue presented to him. This Article honors his immense judicial legacy by considering several of the areas …


Reflections On A Revolution: How Chief Justice Gants Made Massachusetts A Leader In Eyewitness Identification Law, Radha Natarajan, Erik Doughty Nov 2021

Reflections On A Revolution: How Chief Justice Gants Made Massachusetts A Leader In Eyewitness Identification Law, Radha Natarajan, Erik Doughty

Boston College Law Review

Radha Natarajan and Erik Doughty reflect on the revolutionary contributions Chief Justice Ralph D. Gants made to eyewitness identification law in Massachusetts. From convening the Study Group on Eyewitness Evidence to authoring several seminal eyewitness identification cases, Chief Justice Gants’s contributions represented a seismic shift in how eyewitness evidence would be treated in Massachusetts. That sea change, which included rewriting jury instructions, restricting in-court identifications, and reexamining how to assess eyewitness reliability, developed from a rigorous fidelity to scientific development. This foray into the scientific study behind eyewitness identifications has created a template for tackling other complex issues in the …


Chief Justice Gants And Access To Justice: A Case Study In Leadership, Compassion, Brilliance, And Strategy, Russell Engler Nov 2021

Chief Justice Gants And Access To Justice: A Case Study In Leadership, Compassion, Brilliance, And Strategy, Russell Engler

Boston College Law Review

The unexpected passing of Chief Justice Ralph D. Gants was a shock to the legal community in Massachusetts and beyond. “The Chief” greatly influenced all aspects of the legal system, and devoted his life to the problems facing the administration of justice. He sought zealously to address obstacles and inadequacies in both the criminal and civil justice systems. This Article provides a perspective into the scope of his work and his philosophy through the lens of access to justice. It reviews Chief Justice Gants’s work during the last decade, with an emphasis on housing law and eviction as a case …


The Juvenile Justice Legacy Of Chief Justice Ralph Gants, Barbara Lenk, David Rassoul Rangaviz Nov 2021

The Juvenile Justice Legacy Of Chief Justice Ralph Gants, Barbara Lenk, David Rassoul Rangaviz

Boston College Law Review

The late Chief Justice Ralph Gants was a catalyst for criminal justice reform and a champion for young people within the justice system. In his work on the Massachusetts Supreme Judicial Court, Chief Justice Gants committed himself to ensuring that children in juvenile court be treated as youths in need of help and never as criminals in need of punishment. While always respecting proper institutional boundaries, Chief Justice Gants worked to reduce the scope of juveniles’ involvement in the justice system where possible, limit the harmful effects of such involvement on young people, their families, and their communities, and provide …


One Of One: Justice Gants And Lessons From The Keo Case, Joshua E. Goldstein Nov 2021

One Of One: Justice Gants And Lessons From The Keo Case, Joshua E. Goldstein

Boston College Law Review

Chief Justice Ralph D. Gants was a uniquely kind and empathetic person and an enormously consequential reformer. He was also a model judge. He prepared for each case like it was the only one before him, considered thorny legal issues from every angle, and pursued justice in all his judicial work. These qualities were on full display in Commonwealth v. Keo. There, a dissenting Justice Gants identified a question of fundamental fairness, one which the parties had not raised: If a prosecutor, based on essentially the same evidence, makes contradictory statements in the trials of two different defendants, can …


The Criminalization Of Foreign Relations, Steven Arrigg Koh Nov 2021

The Criminalization Of Foreign Relations, Steven Arrigg Koh

Boston College Law School Faculty Papers

Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.


Proposed Model Jury Instruction On Implicit Bias, Sharon L. Beckman Sep 2021

Proposed Model Jury Instruction On Implicit Bias, Sharon L. Beckman

Boston College Law School Faculty Papers

Co-researched and authored with BC Psychology Professor Liane Young, our students, and other members of a Supreme Judicial Court Standing Committee, a proposed model jury instruction aimed at reducing implicit bias. The proposed instruction was adopted by the SJC and is now required in all civil and criminal jury trials in Massachusetts.


What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo Jun 2021

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo

Boston College Law School Faculty Papers

Transitional justice is the complex set of practices and processes that is supposed to help societies transition from atrocity into a post-atrocity, better future. It has also been more thinly defined as a transition from one political regime to the next. Transitional justice practices and processes have embraced, in different degrees, the form of law. Law in this context has been both generative and generated in fora: for constitutional reform; for demanding and receiving accounts from perpetrators of atrocities; for giving victims an opportunity to name and recount their personal tragedies and receive reparation; for retributive, consequentialist, and symbolic punishment; …


Amicus Letter: Graham, Et.Al. V. District Attorney Of Hampden County, Sharon L. Beckman May 2021

Amicus Letter: Graham, Et.Al. V. District Attorney Of Hampden County, Sharon L. Beckman

Boston College Law School Faculty Papers

Co-authored amicus letter urging SJC to grant or review emergency petition for relief from practices of the Hampden County District Attorney and the Springfield Police Department that cause wrongful convictions. Case is pending.


Amicus Brief: Commonwealth V. Alfred Jenks No. 1306, Supreme Judicial Court Of Massachusetts, Sharon L. Beckman May 2021

Amicus Brief: Commonwealth V. Alfred Jenks No. 1306, Supreme Judicial Court Of Massachusetts, Sharon L. Beckman

Boston College Law School Faculty Papers

Co-authored amicus brief successfully urging Supreme Judicial Court to interpret the Massachusetts Post-Conviction Forensic Testing Statute, MGL ch. 278A, broadly to achieve the goal of granting scientific or forensic testimony where material to a claim of factual innocence.


Othering Across Borders, Steven Arrigg Koh May 2021

Othering Across Borders, Steven Arrigg Koh

Boston College Law School Faculty Papers

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.


Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott Apr 2021

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Boston College Law Review

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …


The Internet And The Hobbs Act: What’S The Connection?, Lucas G. Spremulli Apr 2021

The Internet And The Hobbs Act: What’S The Connection?, Lucas G. Spremulli

Boston College Law Review

The Hobbs Act provides a federal alternative to traditional state robbery charges by criminalizing any robbery that affects interstate commerce. Courts have interpreted the Hobbs Act’s commerce element broadly, by requiring the government to demonstrate that a robbery had a de minimis effect on interstate commerce. With this standard, robberies of businesses generally satisfy the statute’s commerce element, but robberies of individuals often do not. This difference between a state and a federal robbery charge is significant, because the Hobbs Act generally carries substantially harsher penal sentences. This Note examines when the use of the internet in the robbery of …


Digital Age Samaritans, Zachary D. Kaufman Apr 2021

Digital Age Samaritans, Zachary D. Kaufman

Boston College Law Review

Modern technology enables people to view, document, and share evidence of crimes contemporaneously or soon after commission. Electronic transmission of this material—including through social media and mobile devices—raises legal, moral, and practical questions about spectators’ responsibilities. In the digital age, will these actors be bystanders or upstanders? What role can and should the law play in shaping their behavior?

This Article argues that certain witnesses who are not physically present at the scene of a crime should be held criminally accountable for failing to report specified violent offenses of which they are aware. Focusing on rape, police brutality, and other …


No Child Was Harmed In The Making Of This Video: Morphed Child Pornography And The First Amendment, Taylor Comerford Apr 2021

No Child Was Harmed In The Making Of This Video: Morphed Child Pornography And The First Amendment, Taylor Comerford

Boston College Law Review

On February 13, 2020, the Fifth Circuit Court of Appeals held, in United States v. Mecham, that the First Amendment does not protect morphed child pornography as a form of speech. The Fifth Circuit found that “morphed child pornography” is like “real child pornography” because the content harms the emotional health and reputation of a child. Thus, the Fifth Circuit held that the First Amendment excludes both forms of child pornography from protection. The Sixth and Second Circuits follow this rule, emphasizing that the government has a strong imperative to intervene in situations that harm children. In contrast, the …


Learning From Omar: The Case For Public Funding Of Postconviction Innocence Defense, Sharon Beckman Apr 2021

Learning From Omar: The Case For Public Funding Of Postconviction Innocence Defense, Sharon Beckman

Boston College Law School Faculty Papers

In 2020, the Boston College Innocence Program secured the exoneration of clients Frances Choy and Ronnie Qualls and the release of a third client pending further litigation. The program has also made significant contributions to law and practice reform efforts. The Boston Bar Journal asked BCIP’s Director, Boston College Law Professor Sharon Beckman, to comment on what is behind the program’s success and to share a lesson learned in her clinic.


Restrain Your Enthusiasm: United States V. Taylor And Robbery Enhancement For Restraint Of A Victim, Madeline C. Verhey Apr 2021

Restrain Your Enthusiasm: United States V. Taylor And Robbery Enhancement For Restraint Of A Victim, Madeline C. Verhey

Boston College Law Review

In February 2020, the Second Circuit held in United States v. Taylor that the Federal Sentencing Guidelines’ enhancement for physical restraint of a victim did not apply to a defendant who threatened a victim with a gun during a robbery. In reaching its decision, the court created a three-part test to determine when a defendant restrained a victim during a robbery. The Taylor test provides a much needed limitation on the scope of the enhancement--the application of which has expanded in the First, Fourth, and Tenth Circuits to defendants who did no more than briefly point a gun at a …


Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker Apr 2021

Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker

Boston College Law School Faculty Papers

This Article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where the Supreme …


“You Just Need To Do It!”: When Texts Encouraging Suicide Do Not Warrant Free Speech Protection, Courtney E. Ruggeri Mar 2021

“You Just Need To Do It!”: When Texts Encouraging Suicide Do Not Warrant Free Speech Protection, Courtney E. Ruggeri

Boston College Law Review

Is it constitutional to hold an individual criminally liable for another’s suicide when words alone drive the conviction? After a Massachusetts court convicted Michelle Carter of involuntary manslaughter following the suicide of her boyfriend Conrad Roy in 2014, the answer seemed to be “yes.” Although Carter’s conviction—which focused on the content of her text messages—was a first-of-its-kind, that was not the case for long. Just five years later, the Commonwealth of Massachusetts brought similar charges against Inyoung You for causing the suicide of her boyfriend, Alexander Urtula, also via text. Although the facts in the two cases are not identical, …


“A Waiver Of The Trial Itself”: The Constitutional Threats Of Extending United States V. Mezzanatto And Contractual Solutions, Cherylann M. Pasha Mar 2021

“A Waiver Of The Trial Itself”: The Constitutional Threats Of Extending United States V. Mezzanatto And Contractual Solutions, Cherylann M. Pasha

Boston College Law Review

Prosecutors and criminal defendants resolve most cases through plea agreements. Often these agreements contain waivers of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, which prevent the admission of statements made during plea discussions into evidence at criminal trial. In 1995, the U.S. Supreme Court in United States v. Mezzanatto held that such waivers are enforceable for impeachment purposes. Numerous U.S. Circuit Courts of Appeals have extended this holding by permitting the use of these statements for the prosecution’s rebuttal and case-in-chief. This Note asserts that the extension of Mezzanatto threatens the constitutional rights of criminal …


Suicide In The Evidentiary Spotlight: An Analysis Of The Trustworthiness Of Suicide Notes Under The Federal Residual Exception, Jana J. Haikal Jan 2021

Suicide In The Evidentiary Spotlight: An Analysis Of The Trustworthiness Of Suicide Notes Under The Federal Residual Exception, Jana J. Haikal

Boston College Law Review

Suicide is a leading cause of death in the twenty-first century. Individuals who take their own lives occasionally leave behind suicide notes. Although rare, these suicide notes are sometimes offered into evidence under the federal residual exception, an exception to the evidentiary rule against hearsay. A court must then decide whether a suicide note is admissible under this exception. In 2019, changes to the federal residual exception went into effect. To be admissible under the new standard, a hearsay statement must be trustworthy and possess probative value. Additionally, the offering party must give notice to the opposing party of its …