Law Commons^™

Through A Lens Of Genocide: A Different Approach For Hate Crimes Legislation, Bruce Ching

Journal Articles

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents …

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

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 …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.

Revocation And Retribution, Jacob Schuman

Journal Articles

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Supervised Release Is Not Parole, Jacob Schuman

Journal Articles

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to …

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Journal Articles

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

The Invisible Prison: Pathways And Prevention, Margaret Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …

Selective Incompatibilism, Free Will, And The (Limited) Role Of Retribution In Punishment Theory, Luis E. Chiesa

Journal Articles

No abstract provided.

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …

Why Mississippi Should Reform Its Penal Code, Judith J. Johnson

Journal Articles

The Mississippi Penal Code was determined at the turn of this century to be the fifty-second-worst penal code in the United States. As much as Mississippi is often used to being-and is even proudly defiant for being-ranked low on national scales, this is an issue about which we should be deeply concerned. A well-drafted penal code is crucial because it is at the core of the primary value of justice. While we are experienced with being ranked last in many situations, often unfairly, the criticism of the Mississippi Penal Code is accurate. Although many of the cited defects are ameliorated …

The Compliance Process, Veronica Root Martinez

Journal Articles

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …

The Model Penal Code, Mass Incarceration, And The Racialization Of American Criminal Law, Luis E. Chiesa

Journal Articles

No abstract provided.

Comparative Analysis As An Antidote To Tunnel Vision In Criminal Law Reform: The Example Of Complicity, Luis E. Chiesa

Journal Articles

In the context of criminal law reform, the tunnel vision that is produced by deeply embedded paradigms or patterns of criminality has the effect of stifling creativity. If left unchecked, the assumptions that serve as the backdrop to our criminal justice system will likely prevent reformers from giving serious consideration to alternatives that are in tension with the dominant patterns of criminality. I will end by arguing that one way of avoiding this outcome is by engaging in the comparative analysis of criminal law. Comparative analysis serves as a kind of “second opinion” that may help criminal law reformers to …

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the …

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

Illegal Predicate Searches And Tainted Warrants After Heien And Strieff, Kit Kinports

Journal Articles

A long-standing debate has surrounded the relationship between two features of the Fourth Amendment's exclusionary rule - the fruits of the poisonous tree doctrine and the good-faith exception - in cases where the evidence used to secure a search warrant was obtained in violation of the defendant's constitutional rights. Some judges and scholars maintain that the fruits of the poisonous tree doctrine takes precedence in such "tainted warrant" cases, leading to the suppression of any evidence seized in executing the warrant unless the warrant was supported by probable cause independent of the illegal predicate search. By contrast, others believe that …

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

"Innocence" And The Guilty Mind, Stephen F. Smith

Journal Articles

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment …

Parallel Enforcement And Agency Interdependence, Anthony O'Rourke

Journal Articles

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships …

The International Criminal Court: Promise And Politics, Makau Wa Mutua

Journal Articles

No abstract provided.

Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman

Journal Articles

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. …

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Journal Articles

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …