Law Commons^™

Innocent Juvenile Confessions, Seth P. Waxman

Journal of Criminal Law and Criminology

No abstract provided.

An Exoneree's Interrogation Nightmare, Christopher Ochoa

Journal of Criminal Law and Criminology

No abstract provided.

Defining "Special Care", Ben Gifford

Journal of Criminal Law and Criminology

For the better part of the last century, the Supreme Court has held that courts must evaluate the voluntariness of juvenile confessions with “special care.” This special care requirement cautions courts against judging juveniles “by the more exacting standards of maturity” or comparing a juvenile suspect “with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” It also instructs courts to ensure that a juvenile’s “admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or …

False Confessions And Testimonial Injustice, Jennifer Lackey

Journal of Criminal Law and Criminology

In the criminal justice system, confessions have long been considered the gold standard in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. Since 1989, there have been 367 post-conviction DNA exonerations in the United States, and 28% of these involved false confessions. Moreover, false confessions involve everything from minor infractions to detailed accounts of violent crimes.

This article takes a close look at false confessions in connection with the phenomenon of testimonial injustice. It argues that false confessions provide a unique and compelling challenge to the current conceptual …

Inaccuracy And The Involuntary Confession: Understanding Rogers V. Richmond Rightly, Dean A. Strang

Journal of Criminal Law and Criminology

No abstract provided.

Protecting Crime Victims In State Constitutions: The Example Of The New Marsy's Law For Florida, Paul G. Cassell, Margaret Garvin

Journal of Criminal Law and Criminology

A majority of states have adopted state constitutional amendments protecting crime victims’ rights. Most of those amendments were adopted long ago and many fail to comprehensively address crime victims’ interests. In response to these shortcomings, the nation is seeing a new wave of state constitutional amendments protecting crime victims’ rights. Among these states is Florida, where in November 2018 Florida voters approved significantly expanded protections for crime victims in Florida’s Constitution—“Marsy’s Law for Florida.”

This Article explains in detail how Marsy’s Law for Florida provides important new protections for crime victims in the Florida criminal justice process. …

Eyewitness Identification And The Problematics Of Blackstonian Reform Of The Criminal Law, Lawrence Rosenthal

Journal of Criminal Law and Criminology

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs.

This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason …

A Material Change To Brady: Rethinking Brady V. Maryland, Materiality, And Criminal Discovery, Riley E. Clafton

Journal of Criminal Law and Criminology

How we think about the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. This Comment demonstrates why materiality, and the theory of juridical proof informing that standard of materiality, must be redefined for Brady v. Maryland doctrine and criminal process. First, the Comment delineates the theory of explanationism—the revolutionary paradigm shift unfolding in the theory of legal proof. Explanationism conceptualizes juridical proof as a process in which the factfinder weighs the competing explanations offered by the parties against the evidence and the applicable burden of proof. Applying explanationism to …

Retroactive Legality: Marijuana Convictions And Restorative Justice In An Era Of Criminal Justice Reform, Deborah M. Ahrens

Journal of Criminal Law and Criminology

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active …

Prosecutorial Declination Statements, Jessica A. Roth

Journal of Criminal Law and Criminology

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

“You May Be Down And Out, But You Ain’T Beaten”: Collective Bargaining For Incarcerated Workers, Keith Armstrong

Journal of Criminal Law and Criminology

The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs …

Stepping Into The “Wrong” Neighborhood: A Critique Of The People V. Albillar’S Expansion Of California Penal Code Section 186.22(A) And A Call To Reexamine The Treatment Of Gang Affiliation, Samuel Dipietro

Journal of Criminal Law and Criminology

Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious …

Can You See And Hear Us, Ms. Smith?: Protecting Defendants’ Right To Effective Assistance Of Counsel When Using Audio And Video Conferencing In Judicial Proceedings, Ivaylo Valchev

Journal of Criminal Law and Criminology

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not …

Progressive Prosecution In A Pandemic, Chad Flanders, Stephen Galoob

Journal of Criminal Law and Criminology

No abstract provided.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Journal of Criminal Law and Criminology

No abstract provided.

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe

Journal of Criminal Law and Criminology

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

Race, Reform, & Progressive Prosecution, Daniel Fryer

Journal of Criminal Law and Criminology

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial …

Rural Spaces, Communities Of Color, And The Progressive Prosecutor, Maybell Romero

Journal of Criminal Law and Criminology

The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors.

Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and …

Prosecutors And Their State And Local Polities, Ronald F. Wright

Journal of Criminal Law and Criminology

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts.

Duties to …

Considering A Domestic Terrorism Statute And Its Alternatives, Francesca Laguardia

Northwestern University Law Review

Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate …

Decisions In The Dark: Why "Pregnancy Exclusion" Statutes Are Unconstitutional And Unethical, Shea Flanagan

Northwestern University Law Review

Advance health care directives are tools that allow people to state their health care treatment wishes or designate a health care proxy in anticipation of being unable to make those decisions in the future, including preferences to remove life-sustaining medical treatment. However, thirty-six states currently have “pregnancy exclusion” laws that require physicians to void the advance directives of pregnant women receiving life-sustaining treatment. This Note assesses the constitutionality and ethics of state pregnancy exclusion statutes by employing a new five-category typology of current pregnancy exclusion laws. This Note argues that all categories of these statutes violate an individual’s constitutional rights …

Legal Strategies For Reining In "Unconscionable" Prices For Prescription Drugs, Michelle M. Mello, Rebecca E. Wolitz

Northwestern University Law Review

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable to challenges on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in …

Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether

Northwestern University Law Review

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …

How Countries Seek To Strengthen Anti-Money Laundering Laws In Response To The Panama Papers, And The Ethical Implications Of Incentivizing Whistleblowers, Carmina Franchesca S. Del Mundo

Northwestern Journal of International Law & Business

The Panama Papers is currently the world’s largest whistleblower case that involved 11.5 million leaked documents and over 214,000 offshore entities. It all linked back to one Panamanian law firm, Mossack Fonseca. In 2016, over 400 investigative journalists collaboratively and simultaneously published stories that exposed the money laundering and tax-evading schemes committed by the rich and powerful. This included political figures and heads of states, celebrities, sports figures, criminal organizations, and terrorist groups.

This article aims to dissect the innerworkings of Mossack Fonseca’s asset-shielding strategy and investigate how the Panamanian law firm was able to circumvent the tax and anti-money …

Corporate Social Responsibility Versus Shareholder Value Maximization: Through The Lens Of Hard And Soft Law, Min Yan

Northwestern Journal of International Law & Business

Even with a significant increase in the number of firms around the world engaging in corporate social responsibility (“CSR”), many people still perceive CSR as a voluntary commitment and shareholder value maximization (“SVM”) as a mandatory requirement. This paper borrows the concept of hard law and soft law in terms of coerciveness and overturns the stereotype that SVM is a hard-law constraint and CSR a soft-law constraint. The paper first demonstrates that directors of the board are not obliged to maximize shareholder value even in the Anglo-American jurisdictions where shareholder primacy culture is more dominant. Next, the paper critically discusses …

Western Corporate Fiscal Citizenship In The 21st Century, Alex Freund

Northwestern Journal of International Law & Business

For the Western world, the challenges of the 21st Century are numerous, from climate change’s effects on food production and coastal cities to underfunded social safety nets to automation’s impact on the middle class. To handle such costly problems, government intervention will be required. Government intervention, however, always comes at a cost to either individuals or corporations. To determine who should bear these costs, scholars and experts should turn to notions of fiscal citizenship – the social contract between the state and private parties through taxation and the provision of goods and services. By applying principles of individual fiscal citizenship …

A Critical Reassessment Of The Role Of Neutrality In International Taxation, David Elkins

Northwestern Journal of International Law & Business

Neutrality plays a central role in the literature on international taxation. In its most prevalent form, the concept of neutrality posits that in order to maximize aggregate global welfare, capital needs to flow to where it would produce the highest pretax return. The thesis of this Article is that neutrality is ordinarily inapplicable in the field of international taxation.

When considering neutrality in the international arena, the problem that one encounters is that the term “international taxation” is commonly used to describe a number of very different types of tax regimes (what the Article refers to as “intranational taxation,” “supranational …

Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer

Northwestern University Law Review

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.

We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did for African …

Framing Trans Rights, Marie-Amélie George

Northwestern University Law Review

In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution.

The trans rights framing choices thus …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …