Law Commons^™

Sexual Epistemology And Bisexual Exclusion: A Response To Russell Robinson's "Masculinity As Prison: Race, Sexual Identity, And Incarceration", Michael Boucai

Journal Articles

No abstract provided.

Moms Behind Bars: Motherhood In Eshowe Correctional Center, Indiana Gowland

Independent Study Project (ISP) Collection

Motherhood represents a integral part of human life. In South Africa particularly, mothers are primarily responsible for caring for their families, often with little or no help from a male partner. But what happens to the notion of motherhood when women find themselves separated from their children or raising children in a restrictive and harsh environment? This study looks at the construction of motherhood within Eshowe Correctional Facility for Women. I conducted research as an attachment to Phoenix Zululand, an organization that provides rehabilitation services to inmates in the prisons of Zululand. For two weeks, I lead Phoenix's program “Starting …

Maine's Women Offenders: What Do We Know?, Erica King Msw, Jillian Foley Mppm, Mark Rubin

Justice Policy

Although Maine has one of the lowest incarceration rates of any state for both men and women, between 1999 and 2004 the state experienced an increase of 114 percent in incarceration of women, the largest increase in the nation. This study provides a descriptive analysis of the characteristics of women entering Maine's probation system in 2004, 2005 and 2006, and examines the factors contributing to recidivism, defined as an arrest for a new crime (misdemeanor or felony) while under probation supervision. The study finds that recidivism rates of Maine's women offenders vary considerably by county and by offense type. The …

Beginning To End Racial Profiling: Definitive Solutions To An Elusive Problem, Kami Chavis Simmons

Faculty Publications

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim's claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities'] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication …

Does Qualified Immunity Matter?, Alexander A. Reinert

Articles

In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …

Prevention Of Identity Theft: A Review Of The Literature, Portland State University. Criminology And Criminal Justice Senior Capstone

Criminology and Criminal Justice Senior Capstone Project

With advances in technology and increases in impersonal electronic transactions, identity theft IT) is becoming a major problem in today’s society. One may ask why IT is growing in America. The answer is simple, as a review of literature reveals: IT is extremely hard to detect, prevent, and prosecute.

There are many ways people can protect themselves, their identities and secure their personal information; many do not concern themselves with this knowledge, however, until they become victims of this crime, themselves. With advances in technology, offenders are often turning to new methods to access information and use it for financial …

The Police Gamesmanship Dilemma, Mary D. Fan

Articles

Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

Faculty Publications

Part I of this article details the Bureau of Prisons' rules and policies governing inmate placement, including the most recent iteration. Part II examines Chevron27 and the Bureau of Prisons' extraordinary justification exception rule. Part III turns to the threshold matter of obtaining judicial access to challenge the Bureau of Prisons' new rule, with Part III.A arguing that the federal courts should relax their standards when faced with exceptions to the exhaustion requirement and Part III.B arguing for the adoption of a federal public importance exception to the mootness doctrine. The article concludes that these changes will further Congress' dual …

Sacrificing Quantity For Quality: Better Focusing Prosecutors' Scarce Resources, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Adam Gershowitz’s and Laura Killinger’s article The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants. The authors rightly argue that prosecutorial overwork harms justice in any number of ways: it delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants. The root problem, however, is less about underfunding than about skewed priorities and metrics of success. Too often, prosecutors do not think strategically about using their discretion to proactively set priorities and focus on system-wide tradeoffs. Throwing money at the problem would …

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

No abstract provided.

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

All Faculty Scholarship

This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

Faculty Articles and Other Publications

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

Streaming The International Silver Platter Doctrine: Coordinating Transnational Law Enforcement In The Age Of Global Terrorism And Technology, Caitlin T. Street

National Security Law Program

The dramatic expansion of technology and globalization over the last thirty years has not only facilitated transnational terrorist operations, but also has transformed the countermeasures utilized by law enforcement and amplified the need for counterterrorism coordination between foreign and domestic authorities. Crucially, these changes have altered the fourth amendment calculus, set out by the international silver platter doctrine, for admitting evidence seized in U.S.-foreign cooperative searches abroad. Under the international silver platter doctrine, courts admit the evidence gathered by foreign authorities abroad unless the unreasonable search is deemed a "joint venture" between U.S. and foreign authorities. Notably, the legal framework …

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …

Hot Crimes: A Study In Excess, Steven P. Grossman

All Faculty Scholarship

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

The Need For A Research Culture In The Forensic Sciences, Jonathan Koehler, Jennifer L. Mnookin, Simon A. Cole, Barry A.J. Fisher, Itiel E. Dror, Max Houck, Kieth Inman, David H. Kaye, Glenn Langenburg, D. Michel Risinger, Norah Rudin, Jay Siegel

Faculty Working Papers

The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts' long-standing acceptance of forensic science evidence, the relative dearth of known errors, and the skill and experience of practitioners. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore …

Atrocity Crimes Litigation Year-In- Review (2010): A Gender Perspective, Valerie Oosterveld

Law Publications

No abstract provided.

Promoting Safeguards Through Detention Visits, Claudio Grossman, Brenda V. Smith, Ariela Peralta, Suzanne Jabbour, Alison A. Hillman De Velasquez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

0790: Gil Kleinknecht Collection, 1899-1973, Marshall University Special Collections

Guides to Manuscript Collections

This collection includes materials from Gil Kleinknecht’s personal collection of historic West Virginia and Ohio materials related to police work. The collection also includes Huntington Police Department annual reports, relevant laws and codes, manuals,, and artifacts related to the work of policing in Huntington, West Virginia and the surrounding areas.

To view materials from this collection that are digitized and available online, search the Gil Kleinknecht Papers, 1899-1973 here.

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

Less Than We Might: Meditations On Life In Prison Without Parole, Robert Blecker

Articles & Chapters

Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for the worst of the worst. These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a punishment worse than death.

Thousands of hours in several states, interviewing and observing more than a hundred convicted killers, along with dozens of correctional officers who …

Annual Juvenile Recidivism Report, Becky Noréus

Justice Policy

Executive Summary:

The Maine Department of Corrections (MDOC) Division of Juvenile Services (DJS) contracts with the Muskie School of Public Service in a state-university partnership to analyze juvenile recidivism rates. DJS measures juvenile justice outcomes to guide policy and program development geared toward recidivism reduction. Reduction of youth recidivism in Maine increases public safety.

Recidivism in this report is defined as a re-adjudication (juvenile) or conviction (adult) for an offense committed by a youth in Maine within three years of his or her first adjudication. This report measures DJS impact on youth who have been adjudicated and placed under supervision …

[A Brief Comparative Summary Of The Criminal Law Of The] United States, Paul H. Robinson

All Faculty Scholarship

This chapter provides a very brief summary of the central features of American criminal law. Section II describes its source and current form, which is almost exclusively statutory, embodied in the criminal codes of each of the fifty American states and (to a lesser extent) the federal criminal code. Section III sketches the typical process by which a case moves through an American criminal justice system, from the report of a crime through trial and appellate review. Section IV summarizes the most basic objective and culpability requirements necessary to establish liability for an offense and the doctrines that sometimes impute …

Cost And Sentencing: Some Pragmatic And Institutional Doubts, Chad Flanders

All Faculty Scholarship

In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) …

If The Shoe Fits They Might Acquit: The Value Of Forensic Science Testimony, Jonathan Koehler

Faculty Working Papers

The probative value of forensic science evidence (such as a shoeprint) varies widely depending on how the evidence and hypothesis of interest is characterized. This paper uses a likelihood ratio (LR) approach to identify the probative value of forensic science evidence. It argues that the "evidence" component should be characterized as a "reported match," and that the hypothesis component should be characterized as "the matching person or object is the source of the crime scene sample." This characterization of the LR forces examiners to incorporate risks from sample mix-ups and examiner error into their match statistics. But how will legal …

Proficiency Tests To Estimate Error Rates In The Forensic Sciences, Jonathan Koehler

Faculty Working Papers

A proficiency test is an assessment of the performance of laboratory personnel using samples whose sources are known to the proficiency test administrator but unknown to the examinee. Proficiency tests can help identify reasonable first pass estimates for the rates at which various types of errors occur. It is crucial to obtain error rate estimates because the reliability and probative value of forensic science evidence is inextricably linked to the rates at which examiners make errors. Without such information, legal decision makers have no scientifically meaningful way of thinking about the risk of false identification and false non-identification associated with …

Comparative Empiricism And Police Investigative Practices, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …