Law Commons^™

Parental Kidnapping And Domestic Violence: The Need To Reform And Enforce State Action, Anna Ratterman

Georgia Criminal Law Review

When civil family issues intersect with criminal acts, the civil and criminal systems fail to effectuate a complete remedy. Specifically, there are few effective protections for victims of domestic violence during the pendency of domestic relations proceedings. Given the complicated gender dynamics and inequalities that have developed throughout history, it is unsurprising that the criminal and civil systems have failed to prioritize prosecution of crimes against women. Current criminal laws fail to treat domestic violence and parental kidnapping as serious crimes and instead adopt the view that domestic disputes are private issues to be handled within the family. In turn, …

Paying For Prison: Equal Protection Remedies For The United States' Wealth Discrimination Problem, Alexandra Smolyar

Georgia Criminal Law Review

The American dream promises wealth, mobility, and security, yet daily millions of Americans live in abject poverty. What’s more, state and local policies render low-income people uniquely vulnerable to criminalization, further lessening their ability to attain this purported American dream. These effects are not incidental. Rather, they reflect a complexly interwoven system of wealth-based discrimination oftentimes promulgated and perpetuated by government actors. Yet, most constitutional anti-discrimination measures do not reach wealth-based discrimination despite the horrific everyday effects felt by low-income communities nationwide. The criminalization of poverty compounds these problems to create a never-ending cycle of discrimination and collateral consequences whose …

Burning The Candle At Both Ends: A Case For The Right To Counsel At The State Habeas Level, Sierra Stanfield

Georgia Criminal Law Review

Shinn v. Ramirez is the latest in a line of court decisions that place debilitating restrictions on the habeas corpus process, making it more difficult than ever for ineffective assistance of counsel claimants to prevail on a federal habeas claim. Paired with the growing restrictions placed on the criminal appellate process, both by the states and by the Supreme Court, these decisions make it near-impossible for many criminal defendants to challenge their convictions and guarantee their rights.

The decision not to guarantee counsel at the state habeas level is grounded in logic that predated these restrictions. The state habeas hearing …

The Use Of Virtual Technology In Federal Criminal Detention Proceedings During Covid-19, The Honorable Karen Wells Roby

Georgia Criminal Law Review

The COVID Pandemic presented unparalleled challenges to court operations and the administration of pretrial criminal proceedings. The combination of health concerns and constitutional considerations collided in a way requiring unprecedented creativity in court operations. While scholars have given guidance on how the state courts were functioning during the pandemic, researchers have not conducted an empirical analysis on how federal courts conducted pretrial detention hearings during COVID-19.

This analysis reports the results of both qualitative and empirical findings pretrial detention hearings in federal courts during COVID-19. I examined the state of operations of the district court in several the Fourth, Fifth, …

"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac

Georgia Criminal Law Review

The outcomes of criminal cases can turn on the credibility of the parties’ expert witnesses. The compensation such experts receive in exchange for their work on cases can undermine their credibility, as it provides the experts with a financial incentive that might bias them in favor of the parties who retain them. While concerns with such bias have existed for decades, courts have been inconsistent in the defining the permissible scope of cross-examination and argument on the issue. Some courts have unduly curtailed such cross-examination and argument. Courts have also been inconsistent in their views of whether calling such expert …

“[T]Here Appears To Be Intentional Discrimination In The Panel”: The Case For Abolishing Peremptory Challenges In Georgia, Ariane Williams

Georgia Criminal Law Review

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court attempted to prevent peremptory strikes motivated by race. However, evidence and jurisprudence since Batson have indicated that the Court did not succeed. Furthermore, peremptory strikes perpetuate racial imbalance in juries and erode public faith in an unbiased legal system, as seen in reactions to the recent McMichael-Bryant trial in Georgia, in which only one black juror was seated. Given the longstanding and intractable issues with peremptory challenges, the Arizona Supreme Court decided to eliminate them entirely in 2021. This Article argues that Georgia should follow suit and abolish …

Answering The Call From Victims Of Dating Violence: Georgia’S New Dating Violence Law, Sydney K. Parish

Georgia Criminal Law Review

Dating violence is a topic that has garnered increased awareness in recent days, both in the media and in the legal field. Many states have begun to pass legislation in attempt to address this issue and provide relief for victims of dating violence. In the summer of 2021, the state of Georgia passed House Bill 231, what later became known as Georgia’s Dating Violence law. This Article first examines our nation’s history of intimate partner violence to show why dating violence legislation was so desperately needed and how these legislative reforms have attempted to heal a system that for so …

The Death Dignity Demands: The Eighth Amendment Requires Incarcerated People Decide Their Method Of Execution, Kali A. Haney

Georgia Criminal Law Review

Recently, there have been a number of incarcerated people on death-row challenging their method of execution and proposing an alternative: usually, firing squad. Courts are hesitant to grant this request for a number of reasons, including the rare use of the firing squad. But there is substantial evidence this method is the most humane. Additionally, it appears incarcerated people think so, which is why so many in recent years chose—or petitioned for—death by firing squad rather than lethal injection or electrocution. As pharmaceutical companies halt their drugs’ distribution to prisons, prisons are forced to come up with their own—often more …

The Use Of Oral Fluid Samples To Test For Driving Under The Influence Of Marijuana, Ian Wise

Georgia Criminal Law Review

Driving Under the Influence of Drugs (DUID) cases pose unique challenges to the criminal justice system. An evidentiary chemical test is a vital piece of evidence in a DUID prosecution because unlike alcohol, drugs do not cause impairment in a uniform fashion. Breath tests cannot detect drugs, and the intrusiveness of blood and urine tests has been the focus of Court cases over the past half-century with decisions in Missouri v. McNeely and Birchfield v. North Dakota curtailing the government’s ability to obtain this evidence without a warrant.

The need for a less intrusive alternative is driven by the doubling …

Protecting Our Nation’S Children In The Technological Age: Arguing For An Interpretation Of “Sexual Activity” In 18 U.S.C. § 2422(B) That Does Not Require Physical Contact, Allison Fine

Georgia Criminal Law Review

Our Nation’s justice system values “equal protection under the law.” This represents the belief that all individuals should be treated equally under the law regardless of personal characteristics. Traditionally, we think about this in a context of things like race, gender, or ethnicity. However, this also encompasses the general idea that individuals nationwide should be accountable to and protected by the same laws. As it relates to criminal law, this notion highlights the importance of uniformity in a criminal justice system. Without consistent application and execution, a criminal justice system will never be fair or “equal.”

The federal child enticement …

Purpose’S Purposes: Culpability, Liberty, Legal Wrongs, And Accomplice Mens Rea, Kevin Cole

Georgia Criminal Law Review

The federal mens rea for accomplice liability—important in its own right and also as an example to the states—is unsettled. Three cases from the just completed Supreme Court term hint (somewhat surprisingly) at various directions the justices might take. This essay examines the cases with a particular focus on the alternative explanations that might be given for the traditional requirement of purposeful facilitation for accomplice liability. The purpose requirement is contestable so long as it is justified in terms of a narrow conception of culpability. It is better understood as serving a liberty-enhancing function. The liberty focus clarifies difficult questions …

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …

Long History Of Leniency? A Call For A Georgia Statutory Mitigation Factor For Veterans With Post-Traumatic Stress Disorder, Jonathan Fagundes

Georgia Law Review

In Georgia, criminal sentencing marks a critical period for convicted defendants. As the final moment before the superior court fashions a punishment, the defendant faces a pivotal opportunity to introduce mitigating evidence, including evidence of mental health challenges, life circumstances, and other facts. Where such evidence is offered, the superior court can properly issue a sentence that aligns with the purposes of punishment or other state policies. But some populations, especially veterans convicted of nonviolent offenses, are exposed to unique stressors that likely affect their culpability. The existing sentencing regime, however, does not guarantee that this mitigating evidence will even …