Law Commons^™

Combating Recidivism, Shaylin Daley

Senior Honors Projects

SHAYLIN DALEY (Psychology) Combating Recidivism Sponsor: Lisa Holley (Political Science) Many people believe that criminals cannot be helped. It is evident that at least some of society shuns people who break laws and have negative views about the amount of money spent on detaining inmates. Thousands of individuals are released from United States prisons a day. Many of these individuals have no plan in place for their return home and are sent into the streets with nothing except for a jail ID. Most of these people will end up returning to prison. A good sum of these people face problems …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Law School News: Welcome, Professor Bernard Freamon 04-20-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Credible: Why We Doubt Accusers And Protect Abusers: A Book Talk With Author Deborah Tuerkheimer, Deborah Tuerkheimer, Emily Sack

School of Law Conferences, Lectures & Events

No abstract provided.

Examining Legal Financial Obligations In Washington State, Bryan Lewis

PPPA Paper Prize

After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …

Stated Culpability Requirements, Scott England

Faculty Scholarship

This Article comprehensively reviews the law of stated culpability requirements in Model Penal Code (MPC) jurisdictions. Part I provides an overview of section 2.02(4), explaining how the provision works and its role in the MPC’s culpability scheme. Part II then identifies section 2.02(4)’s main weaknesses, drawing on both the provision itself and the Code’s commentary. Next, Part III reviews the law in the twenty-five states with culpability provisions influenced by the MPC, identifying specific problems that section 2.02(4) has created in the case law. Finally, Part IV recommends new stated-culpability rules that improve section 2.02(4) and more rigorously enforce the …

Introductory Note To Prosecutor V. Ratko Mladić (U.N. Int’L Residual Mechanism Crim. Tribunals App. Chamber), Steven Arrigg Koh

Faculty Scholarship

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić’s final appeal, opening the door for his assignment to a prison somewhere in Europe.

La Crisis Carcelaria En El Ecuador: Las Causas, Manifestaciones Y Algunas Recomendaciones, Ava Lausch

Independent Study Project (ISP) Collection

Esta monografía trata de la crisis carcelaria en Ecuador. Empieza con las causas multidimensionales de la crisis y las maneras en cómo se manifiesta. La próxima sección explica la narrativa del gobierno versus lo que realmente está haciendo y la política pública relacionada con el sistema penitenciario. La tercera sección tiene que ver con soluciones y recomendaciones por la crisis. Finalmente, hay una sección sobre la aplicación e importancia de la justicia restaurativa como una alternativa a la privación de la libertad. Para conseguir la información incluida, realice una revisión de fuentes secundarias e hice entrevistas con los varios funcionarios …

The Crime Of Sedition: At The Crossroads Of Reform And Resurgence, Adam M. Smith, Charlene Yim, Marryum Kahloon, Human Rights Institute

Human Rights Institute

The offense of “sedition” — often characterized as criminalizing the incitement of rebellion against the government — is an archaic crime that is frequently used to target political speech. Introduced in the sixteenth century in England specifically to suppress dissent, sedition laws spread through the British colonies. These laws still persist in some legal systems, and while there are reforms underway in some of those jurisdictions, in a few outliers, the offense continues to be prosecuted — and in some there has been a resurgence in cases.

Sedition laws have been criticized by the United Nations (“U.N.”), human rights experts, …

Socialist Republic Of Vietnam V. Pham Thi Doan Trang, David Mccraw, Human Rights Institute

Human Rights Institute

On the night of October 6, 2020, at the conclusion of a virtual human rights meeting between the governments of the United States of America and Vietnam, Vietnamese police arrested the journalist and human rights activist Pham Thi Doan Trang at her home in Hanoi. Ms. Trang was arrested and detained for allegedly “conducting propaganda against the Socialist Republic of Vietnam” and “making, storing, spreading information, materials, items for the purpose of opposing the State of Socialist Republic of Vietnam” — two of the most notorious of Vietnam’s fifteen national security offenses.

It would be a full year — during …

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French

JCLC Online

The U.S. Supreme Court established the “personal benefit” test in Dirks v. SEC to determine whether a tippee assumed a fiduciary duty to not trade based on or disclose inside information when a tipper breached his or her fiduciary duty by improperly disclosing such information to the tippee. Under the personal benefit test, a tipper breaches his or her fiduciary duty if the tipper derives a personal benefit, either directly or indirectly, from disclosing the inside information to a tippee. The Supreme Court provided examples as to what constitutes a personal benefit, such as the tipper’s expectation of reputational benefits …

Reexamining The Application Of Duress And Necessity Defenses To Prison Escape In The Context Of Covid19, Bill Clawges

JCLC Online

The classic example of the necessity defense involves a prisoner escaping from a burning prison. Surely, the law would not require them to stay in the prison when doing so would put their life at an immediate and grave risk. This example epitomizes the purpose of the necessity defense; society would rather the prisoner survive and leave prison than die ablaze while obeying the letter of the law. In recent years, the difference between the two justification defenses of necessity and duress has become blurred, especially in cases involving prison escape. Both are equally applicable, and both are relevant in …

Losing Someone Then Losing Yourself: Helping Juveniles In The Justice System Experiencing Grief With A Trauma-Informed Pretrial Diversion Program, Sydney Ford

JCLC Online

Grief is something we all experience at some point in our lives. When a child experiences grief and loss, those emotions, if not addressed, can cause adverse effects. Many of our country’s detained youth have fallen victim to these effects because they have been unable to address the underlying grief that causes their behaviors. Because of this, this Article advocates for creating a trauma-informed pretrial diversion program focused on helping grieving youth. First, this Article examines the overwhelming number of grieving children in our juvenile justice system, and how their grief has led them to where they are today. Second, …

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the second in a series of two essays that explore Reginald McFadden’s commutation. This Part considers whether, in hindsight, there was any sound basis for McFadden’s release given the policy grounds for commutations and describes …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

JCLC Online

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

10-50: Addiction And Confinement In Whatcom County, Kaitlyn Davidson

WWU Honors College Senior Projects

Researching the failures and successes of the criminal justice system leads to numbers, not lives.

What drove me to this research was my internship with the Whatcom County Public Defender’s Office, where I interacted with detainees on a daily basis. The narrative power of their stories was enough to make me question the role that jails should play in our community’s response to substance abuse. None of those stories have been included.

It is easy to paint horrifying portraits of inmates rotting in prisons, brutalized by a system designed to torment them. But this is not reality. It is comfortable …

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley

Faculty Scholarship

Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological …

Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson

Faculty Scholarship

Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

The Progressive Love Affair With The Carceral State, Kate Levine

Articles

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon

Articles & Chapters

One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.

It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Place Of The Prosecutor In Abolitionist Praxis, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

The Broken Fourth Amendment Oath, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …