Law Commons^™

Considering Caretakers: An Explicit Argument For Downward Departures During Federal Sentencing Mitigation For Caretakers Of Children, Danielle Sparber Bukacheski

University of Miami Law Review

The sentencing stage of the federal legal system provides defendants with an opportunity to articulate why the sentencing judge is justified in imposing less severe sentences. Yet, under the Federal Sentencing Guidelines, sentencing judges have been restricted in the characteristics and background information that can be utilized when imposing a downward departure from the recommended Guidelines sentence. More specifically, there is great variability regarding the extent to which family-related circumstances can be utilized as justification for a downward departure due to the Sentencing Commission’s ambiguous language. Considering the damaging effects of incarceration on children when a caretaker is physically removed …

Does The Criminal Enforcement Of Federal Environmental Law Deter Environmental Crime? The Case Of The U.S. Resource Conservation And Recovery Act, Dr. Joshua Ozymy, Dr. Melissa L. Jarrell

Environmental and Earth Law Journal (EELJ)

The U.S. Environmental Protection Agency (EPA) and the Department of Justice are tasked with the investigation and prosecution of hazardous waste crimes occurring under the U.S. Resource Conservation and Recovery Act (RCRA). For criminal sanctions to be effective, the probability of detection and severity of punishment must be significant enough to raise the cost to benefit ratio to deter environmental crimes. While research examines sanctioning under RCRA, little work examines the plausibility of the deterrent effect of criminal sanctions. Through content analysis of all environmental crime prosecutions resulting from EPA criminal investigations, 1983-2019, we explore the probability of detection and …

The Economic Case For Rewards Over Imprisonment, Brian D. Galle

Indiana Law Journal

There seems to be a growing social consensus that the United States imprisons far too many people for far too long. But reform efforts have slowed in the face of a challenging question: How can we reduce reliance on prisons while still discouraging crime, particularly violent crime? Through the 1970s, social scientists believed the answer was an array of what I will call preventive benefits: drug and mental health treatment, housing, and even unconditional cash payments. But early evaluations of these programs failed to find much evidence that they were successful, confirming a then-developing economic theory that predicted the programs …

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

The Robot-Transporter: Sex Trafficking, Autonomous Vehicles, And Criminal Liability For Manufacturers, Olivia Phillips

Dickinson Law Review (2017-Present)

Despite global condemnation, sex trafficking continues to plague our world. Even in developed countries, the problem persists. Technological advancements, like the Internet, have spurred the development of organized sex trafficking networks and have made “transactions” easier. Although law enforcement agencies have tried to adapt their investigative techniques to combat the problem, developments in technology move at a much quicker rate.

Autonomous vehicles (AVs) will present a new set of challenges for law enforcement agencies in the fight against sex trafficking. In the not-too-distant future, AVs, or “self-driving cars,” will dominate the roadways. An AV will be completely aware of the …

In Consumer Protection We Trust? Re-Thinking The Legal Framework For Country Of Origin Cases, Shmuel I. Becher, Jessica C. Lai

San Diego Law Review

Markets are becoming more complicated in an ever faster changing world. New findings pertaining to human behavior and consumer markets constantly challenge traditional legal and policy assumptions. Social science offers a myriad of insights into the ways trust, identity, ideology, and preferences interact and impact one another. Against this background, the need to advance a nuanced legal framework is increasingly vital.

Consumer law policy requires an interdisciplinary and holistic approach. Recent scholarship has acknowledged this need, proposing novel ways to enrich the academic discourse and develop consumer law policy. Along these lines, a growing body of literature examines how notions …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

The Territorial Principle In Penal Law: An Attempted Justification, Patrick J. Fitzgerald

Georgia Journal of International & Comparative Law

No abstract provided.

Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg

Michigan Law Review First Impressions

The website of the Santa Ana, California-version of Pay-to-Stay uses hotelier-type verbiage in describing features of its alternative jail program. It tells us that the jail “is pleased to host a full range of alternatives to traditional incarceration”; it reassures prospective “clients” seeking flexible work/jail schedules (“Work on Saturday or Sunday? No problem, your weekend days are our weekend days.”); it guarantees “24-hour on-site medical staff”; it accommodates inmates near and far (“We have helped clients with sentences from other counties as well as other states.”); and it generally brags that the jail “is the most modern and comfortable facility …

Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo

St. Mary's Law Journal

There is a nationwide debate on whether punitive damages should be insurable. Insuring punitive damages causes courts concern regarding whether a wrongdoer escapes punishment by having the insurer pay for damages attributable to the wrongdoer’s egregious conduct. The United States Court of Appeals for the Fifth Circuit noted Texas’ public policy does not justify interference with private insurance contracts. The Court determined Texas allows liability insurance contracts to cover punitive damages and declared the inquiry ended. But, in the years since this determination, many Texas appellate courts have contracted the Fifth Circuit’s holding. The shifting discussion among Texas appellate courts …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Michigan Law Review

Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states' applications …

Punitive Damages In Texas: Examining The Need For A Split-Recovery Statute., Meredith Matheson Thoms

St. Mary's Law Journal

As a result of the increasing number and amounts of punitive damage awards, a call for reform is much warranted. Reformers and legislators continue to seek out measures to effectively limit excessive punitive damage awards and deter unnecessary and frivolous litigation. But they must consider not only the effects of the statutes but also the purposes they will serve. Split-recovery statutes can become valuable reform tool which will continue to serve the goals of punishment and retribution attached to punitive damages as well as deterrence. Split-recovery statutes arguably enlarge government, but they also serve a valuable purpose in furthering the …

Creative Sanctions For Discovery Abuse In Texas., Travis C. Headley

St. Mary's Law Journal

Creative sanctions are necessary to deter litigants from abusing the discovery process. Under both the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure, creative sanctions are allowed and within a judge’s discretion. Federal Rule of Civil Procedure 37 and Texas Rule of Civil Procedure 215 provide judges a non-exhaustive list of available sanctions to deter abusive discovery practices. Nonetheless, discovery abuse has continued to escalate, and limited precedence exists in the field despite the increased use of sanctions. An unprecedented creative sanction was imposed by Judge Brotman of the District Court for the Virgin Islands. On …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard E. Harcourt

Michigan Law Review

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

The Writing On Our Walls: Finding Solutions Through Distinguishing Graffiti Art From Graffiti Vandalism, Marisa A. Gómez

University of Michigan Journal of Law Reform

This Note argues that outlawing graffiti completely is not an effective solution. The only effective means of controlling graffiti is to develop laws and policies which accommodate graffiti art while discouraging graffiti vandalism and which attack the root causes of graffiti. Part I briefly outlines the origins of graffiti. Part II describes the different types of graffiti and the motivations of their respective creators. Part III analyzes the arguments for and against the legalization of certain types of graffiti and concludes that, because of the multitude of different types of graffiti, both graffiti proponents and opponents have meritorious arguments that …

Limiting Punitive Damages: A Placebo For America's Ailing Competitiveness., Jimmie O. Clements Jr.

St. Mary's Law Journal

This Comment will discuss Vice President Dan Quayle’s proposed legislation by reviewing the history of punitive damages and providing an overview of current state legislation. Thereafter, this Comment debunks the theory of an unruly punitive damage system and analyzes the impact of a punitive damages cap on competitiveness, quality, safety and the doctrine’s underlying goals. On August 13, 1991, Vice President Quayle, as head of the President’s Council on Competitiveness (the Council), addressed the American Bar Association’s annual meeting. He announced a fifty-point proposal designed to improve the civil justice system. Vice President Quayle proposed, inter alia, a cap on …

Interference With Prospective Civil Litigation By Spollation Of Evidence: Should Texas Adopt A New Tort., Philip A. Lionberger

St. Mary's Law Journal

Texas courts should adopt a tort for spoliation of evidence. Spoliation of evidence is the tampering with, interference with, loss of, or destruction of evidence. Spoliation of evidence is a serious legal problem because it increases a litigant’s difficulty in proving a cause of action or a defense. Evidence destruction may also increase litigation costs and cause the trial court to make factfinding errors. Texas courts should adopt the tort of spoliation of evidence because it compensates injured litigants and deters future acts of spoliation. Another reason for adopting the tort for spoliation of evidence is the inadequacy of alternative …

A Capacity To Punish: The Ecology Of Crime And Punishment, Samuel M. Hill

Michigan Law Review

A Review of A Capacity to Punish: The Ecology of Crime and Punishment by Henry N. Pontell

Deterrence, Death, And The Victims Of Crime: A Common Sense Approach, Frank G. Carrington

Vanderbilt Law Review

The concept of deterrence is one of the most important in the formulations of the victim advocate, primarily because of two essential premises that underlie the entire field of victim advocacy.The first, but not necessarily the most important, of these premises concerns the policy that favors assuaging the plight of persons after they have been victimized. This relief can be provided in a number of different ways: compensation to innocent victims from the states; restitution to victims as a condition of granting probation to the criminal; victim counselling; and victim/witness assistance programs.' The second premise of victim advocacy, namely,preventing victimization …

Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert

Michigan Law Review

The controversy over the death penalty has generated arguments of two types. The first argument appeals to moral intuitions; the second concerns deterrence. Although both types of argument speak to the morality of systems of capital punishment, the first debate has been dominated by moral philosophers and the second by empirical social scientists. For convenience I shall at times refer to the approach of the moral philosophers as the moral case for (or against) capital punishment or as the argument from morality.

Two Theories Of Criminal Justice, Alsen D. Miller

Michigan Law Review

A Review of A Theory of Criminal Justice by Jan Gorecki, and A Theory of Criminal Justice by Hyman Gross