Law Commons^™

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 …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Prescribing Opioids Without Fear Of Prosecution, Adam M. Gershowitz

Popular Media

No abstract provided.

Sea Of Destruction: Legal And Social Forces Enabling Sexual Abuse Of Children, Amos N. Guiora

Utah Law Faculty Scholarship

This Article seeks to expose the truth of how our schools, laws, and powerful groups in our society actively work to aid mobile molesters in schools—mobile because they move from child to child and school to school, all with the blessing of adult enablers who are charged to protect children. According to news reports, in 2015, at least 498 teachers and other school workers were arrested for sexual misconduct with children. That is almost three per school day. Even worse, in addition to the initial attack by the molester, the child is subsequently revictimized by others who aim attempt to …

Proxy Crimes, Piotr Bystranowski, Murat C. Mungan

Faculty Scholarship

“Proxy crimes” is a phrase loosely used to refer to conduct that is punished only as a means to target other harmful conduct. Many criminal law scholars find the criminalization of this type of conduct unjustifiable from a retributivist perspective, while others note that proxy criminalization can contribute to mass incarceration and overcriminalization. Given the importance of these problems, a systematic analysis of proxy crimes, currently absent in the criminal law literature, is needed.

In this article, we provide a comprehensive analysis of proxy crimes by (i) surveying the existing literature and identifying gaps in prior analyses, (ii) proposing a …

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

Articles

This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …

Conspiracy, Complicity, And The Scope Of Contemplated Crime, Kimberly Ferzan

All Faculty Scholarship

One of the leading casebooks for the first-year Criminal Law course begins the mens rea discussion with Regina v. Cunningham.1 Cunningham, in need of money, decided to rip the gas meter off the residential gas pipe in his soon-to-be basement to steal the shillings inside. That Cunningham was guilty of theft was uncontroversial. The problem was that Cunningham did not turn off the gas, and it seeped into the adjacent home, partially asphyxiating the neighbor, Sarah Wade. Although the case is technically about the interpretation of the word “maliciously” in the Offences against the Person Act, the lesson students are …

Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

All Faculty Scholarship

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Seditious Conspiracy Charge Against Oath Keepers Founder And Others In Jan. 6 Riot Faces First Amendment Hurdle, Timothy Zick

Popular Media

No abstract provided.

Internal And External Challenges To Culpability, Stephen J. Morse

All Faculty Scholarship

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

Firearms And Toolmark Error Rates, Susan Vanderplas, Kori Khan, Heike Hofmann, Alicia L. Carriquiry

Department of Statistics: Faculty Publications

We have outlined several problems with the state of error rate studies on firearm and toolmark examination. Fundamentally, we do not know what the error rate is for these types of comparisons. This is a failure of the scientific study of toolmarks, rather than the examiners themselves, but until this is corrected with multiple studies that meet the criteria described in Section 3, we cannot support the use of this evidence in criminal proceedings.

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

McGeorge School of Law Scholarly Articles

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

Expanding Statutes Of Limitations For Sex Crimes: Bad Public Policy, Michael Vitiello

McGeorge School of Law Scholarly Articles

The Victims’ Rights Movement has been one of the most consequential political forces in the United States over the past fifty-plus years. It has scored major legislative victories across the country. Every state and the federal government have adopted major laws advanced by the movement. After years of expanding prison populations, many policymakers and scholars have begun to question the wisdom of many of the movement’s legislative victories.

Despite current pushback against the movement, the movement and members of the public are pushing for the elimination or dramatic extensions of statutes of limitations for sex offenses and child-sex offenses. Such …

Mich. Ruling Widens Sentencing Protections For Young Adults, Kimberly A. Thomas

Other Publications

On July 28, the Michigan Supreme Court held that the mandatory imposition of a life-without-parole sentence on an 18-year-old violated the state constitution.

This decision expands the protections provided for young defendants by the U.S. Supreme Court in Miller v. Alabama and builds on a nascent trend that provides additional constitutional and statutory protections for young people over 17 years old who are charged with serious offenses.

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Pretrial Disparity And The Consequences Of Money Bail, Miguel De Figueiredo, Dane Thorley

Faculty Articles and Papers

Catalyzed by the Black Lives Matter protests in 2020, support for criminal justice reform in the United States has become a groundswell, with reformers demanding an end to racial and socioeconomic disparities in all aspects of policing, prosecution, adjudication, and incarceration. While high-profile cases of police misconduct during arrest remain in the limelight, a growing and politically diverse chorus of voices is calling for change at the first point of contact between a defendant and the court system: the bail hearing. Bail decisions are highly consequential in terms of their scale and impact on the lives of defendants, their families, …

Citizen's Arrest And Race, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

Emotional Distress Recovery For Mishandling Of Human Remains: A Fifty State Survey, Christopher Ogolla

Faculty Scholarship

No abstract provided.

Drug Supervision, Jacob Schuman

Journal Articles

Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …

Telemedicine Scams, Katrice B. Copeland

Journal Articles

Telemedicine emerged as a lifeline during the COVID-10 pandemic. Although the technology existed long before the pandemic, its use was limited due to strict government regulations that limited reimbursement for telemedicine visits. In response to the pandemic, the Government waiver many of its restrictions for the duration of the Public Health Emergency. These changes fueled the growth of telemedicine.

The problem, however, is that telemedicine makes it easier to conduct fraud on a larger scale because without in-person visits, medical providers can reach many more beneficiaries in a short period of time. Thus, the size and scale of typical health …

Criminal Violations, Jacob Schuman

Journal Articles

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a condition of their supervision, sending 350,000 people to prison each year. To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an …

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

The Common Prosecutor, Melanie D. Wilson

Scholarly Articles

This symposium piece stems from the Loyola University of Chicago Law Journal’s Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte

Scholarly Articles

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for that provision …