Law Commons^™

The Costs Of The Punishment Clause, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal punishment pursuant to a facially valid conviction in a court of law is an uncontested exception to the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. After all, the Constitutional text reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” And yet, beginning almost immediately after the Thirteenth Amendment was adopted, states regularly employed criminal statutes to limit the movement and behaviors of those previously enslaved and subject them to slavery-type labor camps in conditions that closely mirrored slavery. Because neither the …

Invoking Criminal Equity's Roots, Cortney Lollar

Law Faculty Scholarly Articles

Equitable remedies have begun to play a critical role in addressing

some of the systemic issues in criminal cases. Invoked when other

solutions are inadequate to the fair and just resolution of the case,

equitable remedies, such as injunctions and specific performance,

operate as an unappreciated and underutilized safety valve that

protects against the procedural strictures and dehumanization that are

hallmarks of our criminal legal system. Less familiar equitable-like

legal remedies, such as writs of mandamus, writs of coram nobis, and

writs of audita querela, likewise serve to alleviate fundamental errors

in the criminal process. Several barriers contribute to the …

Flesh Markets: Sex Trafficking, Opioids, And The Legal Process To Eradicate The Demand, Blanche Cook

Law Faculty Scholarly Articles

On February 5, 2021, the University of Kentucky J. David Rosenberg College of Law, grateful steward of the community it serves, held a symposium for students, practitioners, stakeholders, and the public. The symposium, the first of its kind, examined the converging and rising tides of sex trafficking vulnerability and opioid dependency. The Kentucky Law Journal and the University of Kentucky Department of Gender and Women's Studies sponsored the symposium.

In order to provide necessary context, the following introduction briefly outlines sex trafficking and is followed by an overview of the symposium. For a more detailed review of the generous expertise …

Eliminating The Criminal Debt Exception For Debtors' Prison, Cortney E. Lollar

Law Faculty Scholarly Articles

Although the exact number is unknown due to poor documentation, the data available suggests nearly a quarter of the current incarcerated population is detained due to a failure to pay their legal financial obligations. In federal courts alone, the amount of criminal legal debt owed to the U.S. government in fiscal year 2017 totaled more than $27 billion, and to third parties, more than $96 billion, not including interest. In 2004, approximately sixty-six percent of all prison inmates were assessed a fine or fee as part of their criminal sentence.4 Not surprisingly, legal financial obligations disproportionately impact poor defendants and …

Reviving Criminal Equity, Cortney Lollar

Law Faculty Scholarly Articles

Recent scholarship has begun to take note of a resurgence of equity in civil cases. Due to a long-accepted premise that equity does not apply in criminal cases, no one has examined whether this quiet revival is occurring in criminal jurisprudence as well. After undertaking such an investigation, this Article uncovers the remarkable discovery that equitable remedies, including injunctions and specific performance, are experiencing a resurgence in both federal and state criminal jurisprudence. Courts have granted equitable relief in a range of scenarios, providing reprieve from unconstitutional bail and probation practices and allowing for an appropriate remedy to ineffective assistance …

Stop Traffic: Using Expert Witnesses To Disrupt Intersectional Vulnerability In Sex Trafficking Prosecutions, Blanche Cook

Law Faculty Scholarly Articles

Sex trafficking thrives on intersectional inequality and reinforcing

layers of vulnerability. Sex trafficking exists on a continuum of

sexualized violence, from microaggressive sexual harassment to

macroaggressive gang rapes, all of which create vulnerability in the

victim and perfect sovereignty in the perpetrator. Sexualized violence

performs power, as it is raced, classed, and gendered. Power not only

requires performance, but it necessitates repetitive reenactments of

domination in order to normalize its compulsive and pathological nature.

Lynchings, police shootings, gang rapes, and sex trafficking are all

performances of power on vulnerable bodies through which power

perfects itself. The same inequality that creates …

Criminalizing (Poor) Fatherhood, Cortney E. Lollar

Law Faculty Scholarly Articles

States prosecute and incarcerate thousands of fathers every year for failing to pay their child support obligations. Ostensibly, these prosecutions aim to foster the health and well-being of children without requiring the child’s mother to bear the costs of raising the child alone. What may appear on the surface to be a system that balances out inequities is actually a deeply flawed government program—one that promotes criminal recidivism and reinforces the poverty of indigent fathers. Contrary to the common image of a “deadbeat dad” raking in money and staying on the lam to avoid helping a mother raise their child, …

Criminalizing Pregnancy, Cortney E. Lollar

Law Faculty Scholarly Articles

The state of Tennessee arrested a woman two days after she gave birth and charged her with assault of her newborn child based on her use of narcotics during her pregnancy. Tennessee's 2014 assault statute was the first to explicitly criminalize the use of drugs by a pregnant woman. But this law, along with others like it being considered by legislatures across the country, is only the most recent manifestation of a long history of using criminal law to punish poor mothers and mothers of color for their behavior while pregnant. The purported motivation for such laws is the harm …

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health care …

Decisions To Prosecute Battered Women's Homicide Cases: An Exploratory Study, Sarah N. Welling, Diane Follingstad, M. Jill Rogers, Frances Jillian Priesmeyer

Law Faculty Scholarly Articles

Discretionary decisions to prosecute cases in which a battered woman kills her partner were investigated using several research strategies and targeting a range of case elements. Law students presented with case elements reported they would consider legal elements over nonlegal (or ‘supplemental’) elements when making a decision to prosecute. In contrast, law students assessed through an open-ended format as to important case factors for deciding to prosecute spontaneously generated high proportions of supplemental case elements compared with legal factors. Vignette comparisons of 42 case elements on participants’ likelihood to prosecute identified salient factors including legal and supplemental variables. Themes from …

Punitive Compensation, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution's traditional aim of disgorging a defendant's ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider "restitution," this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim's losses, not a defendant's …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

Getting Jurors To Awesome, Cortney E. Lollar

Law Faculty Scholarly Articles

A 2011 American Bar Association report on the death penalty in Kentucky revealed that a shocking two-thirds of the 78 people sentenced to death in Kentucky since reinstatement of the death penalty in 1976 have had their sentences overturned on appeal. Kentucky’s reversal rate is more than twice the national average, with a 31% reversal rate in capital cases and almost four times the 17% national reversal rate in all other case types. With a sentence as irreversible as death, troubling does not begin to describe the depth of concern many experience when viewing such a startling statistic.

A closer …

Life And Death In Kentucky: Past, Present, And Future, Roberta M. Harding

Law Faculty Scholarly Articles

This article provides a historical survey of capital punishment in the Commonwealth of Kentucky, paying particular attention to gender and race. The author concludes that given the lack of recent executions that it is perhaps time to make legislative changes to the Commonwealth’s death penalty practice.

Child Pornography And The Restitution Revolution, Cortney E. Lollar

Law Faculty Scholarly Articles

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach …

Reviving The Federal Crime Of Gratuities, Sarah N. Welling

Law Faculty Scholarly Articles

The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.

This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s …

Toward A Situational Model For Regulating International Crimes, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime, as currently conceived, relies almost exclusively on the power of backward-looking criminal sanctions to deter future international crimes. This model reflects the dominant mid-century approach to crime control, which was essentially reactive. Since then, domestic criminal scholars and practitioners have developed and implemented new theories of crime control—theories notable for their promise of crime prevention through ex ante attention to community and environmental factors. Community policing crime prevention through environmental design, and related "situational" approaches to crime control have had a significant impact on the administration of domestic criminal law.

This Article evaluates the implications of …

Friction In Reconciling Criminal Forfeiture And Bankruptcy: The Criminal Forfeiture Part, Sarah N. Welling, Jane Lyle Hord

Law Faculty Scholarly Articles

The federal government uses two general types of asset forfeiture, criminal and civil. This Article addresses criminal forfeiture, which allows the government to take property from defendants when they are convicted of crimes. It is “an aspect of punishment imposed following conviction of a substantive criminal offense.” The goal of this Article is to give an overview of the forfeiture process, specifically in relation to claims victims and creditors might assert as third-party claimants.

Moral Judgments & International Crimes: The Disutility Of Desert, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms—that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the "utility of desert," a theory about the usefulness of appealing to people's retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this …

Drug Law Reform—Retreating From An Incarceration Addiction, Robert G. Lawson

Law Faculty Scholarly Articles

Now, thirty years into the "war on drugs," views about the law's reliance on punishment to fix the drug problem are less conciliatory and more absolute: "[t]he notion that 'the drug war is a failure' has become the common wisdom in academic ... circles." Those who have most closely studied the results of the "war" believe that it has "accomplished little more than incarcerating hundreds of thousands of individuals whose only crime was the possession of drugs." More importantly, they believe that it has had little if any effect on the drug problem: "Despite the fact that the number of …

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …

Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson

Law Faculty Scholarly Articles

The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …

Balancing Lives: Individual Accountability And The Death Penalty As Punishment For Genocide (Lessons From Rwanda), Melynda J. Price

Law Faculty Scholarly Articles

The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide. One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice. This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic …

Delimiting The Culture Defense, James M. Donovan, John Stuart Garth

Law Faculty Scholarly Articles

This essay builds upon the arguments of Alison Dundes Renteln in her influential book, The Cultural Defense (2004), in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements:

1. …

The Sad, Sad Story Of Lula Viers, Richard H. Underwood, Sharon Ray

Law Faculty Scholarly Articles

In this article, Professor Richard H. Underwood explores the murder ballad entitled Lula Viers. Lula Viers was from the Appalachia region of Kentucky.

Litigating Salvation: Race, Religion And Innocence In The Karla Faye Tucker And Gary Graham Cases, Melynda J. Price

Law Faculty Scholarly Articles

The cases of Karla Faye Tucker and Gary Graham represent two examples of the renewed public debate about the death penalty in the State of Texas, and how religion and race affect that debate. This article explores how the Tucker and Graham cases represent opposing possibilities for understanding contemporary narratives of the death penalty. Though the juxtaposition of these two cases is not completely symmetrical, if viewed as a kaleidoscope—a complex set of factors filtered through the shifting identities of the person who is at the center of the immediate case—the hidden operations of race and religion can be examined. …

Stella Kenney: A Little Problem In Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

In this article, Professor Richard H. Underwood explores the murder ballad entitled Stella Kenney. Stella Kenney (whose real name was Kinney) was from Carter County, Kentucky.

Turning Jails Into Prisons—Collateral Damage From Kentucky's War On Crime, Robert G. Lawson

Law Faculty Scholarly Articles

The primary purpose of this article is to scrutinize Kentucky's ever-increasing reliance on local jails for the incarceration of state prisoners. This objective cannot be achieved without an examination of the problems that compel counties and cities to allow (and even encourage) the state to capture their jails for this use. The first half of the article (Parts I-IV) provides general information about jails (including some pertinent history), contains a detailed description of jail functions (including some that have descended upon jails by default), and concludes with a discussion of what the state has done over two decades to convert …

Difficult Times In Kentucky Corrections—Aftershocks Of A "Tough On Crime" Philosophy, Robert G. Lawson

Law Faculty Scholarly Articles

The objective of this article is to cast some light on corrections system problems brought on by elevated (and possibly unnecessary) levels of incarceration, and especially on problems that trouble the Kentucky corrections system and threaten to undermine the effectiveness of the state's justice system. Part II describes how the country came to embrace sentencing policies and practices capable of producing "a penal system of a severity unmatched in the Western world.” Part III describes Kentucky's embrace of equally harsh sentencing policies and practices and the inmate population explosion that has occurred as a direct result of those policies and …

Prosecutorial Misconduct In Capital Cases In The Commonwealth Of Kentucky: A Research Study 1976-2000, Roberta M. Harding, Bankole Thompson

Law Faculty Scholarly Articles

The prosecutor wields tremendous power within the American criminal justice system. When that power is misused-particularly in capital cases-tremendous injustices are perpetrated. Yet, occurrences of prosecutorial misconduct seem to occur with distressing regularity. An exhaustive study covering appeals from 1973-95 revealed that two-thirds of overturned death penalties in the United States resulted from overzealous police and prosecutors who withheld exculpatory evidence. Our study covered 55 Kentucky cases from 1976-2000 and found evidence of prosecutorial misconduct in nearly one-half of them, often with several instances per case.