Law Commons^™

The Evolution Of Unconstitutionality In Sex Offender Registration Laws, Catherine L. Carpenter

Catherine L Carpenter

ABSTRACT More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary. This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes – what this piece dubs super-registration schemes – are not. Their emergence over the last several years demands re-examination of traditionally held assumptions that …

Why Congress Cannot Require Major League Baseball To Implement Suspicionless Blood Testing For Performance-Enhancing Drugs, Matthew W. Kerner

Matthew W Kerner

In the United States, professional baseball is not only ingrained in the fabric of popular culture, it is big business. As of 2010, Major League Baseball (MLB) players earn annual salaries ranging from the league minimum of $400,000, to the astronomical $33 million paycheck of New York Yankees megastar, Alex Rodriguez. The average salary of an MLB player in 2010 was $3,297,828, which is more than a 65 percent increase from the average 2000 salary of $1,998,034. Meanwhile, the inflation rate in the United States has risen just 28.37 percent in the same time span. These figures do not even …

Plugging The School To Prison Pipeline By Addressing Cultural Racism In Public Education Discipline, Patrick Metze

Patrick Metze

As timely as today’s headlines, I take a critical look at the failure of the public schools to educate our children by criminalizing and alienating students of color and of economic disadvantage, forcing them out of the schools and into the juvenile justice system as the first step to a life of reduced expectations and productivity. We are failing to prevent these children from becoming disengaged from society and its institutions that were designed for their benefit – the institution of a free public education. It is time we frankly acknowledge that our long stored history of racial conflict has …

A Safety Doctrine To The Criminal Justice System, Boaz Sangero, Mordechai Halpert

Prof. Boaz Sangero

Criminal law, unlike other risk-creating fields, currently lacks any modern safety doctrine. In light of the proven phenomenon of wrongful convictions and the severe harm it causes to both those wrongly convicted and society, this Essay focuses on the necessary preliminary stages in developing a safety doctrine for the criminal justice system. Under our conception, criminal law is a "safety-critical system": it deals with matters of life and death. We view false conviction to be a type of accident, similarly to a crash of a fighter airplane. This comparison is not only metaphorical, but quite literal when the damage is …

Sext Appeals: Re-Assessing The Exclusion Of Self-Created Images From First Amendment Protection, Carmen Naso Mr

Carmen Naso Mr

ABSTRACT Only recently could it have been imagined that in less than a minute, a young person could or would create, and possess a sexually explicit photo of him or herself and then send it to hundreds of recipients throughout the country. Nor could one think of web cam chats or phone conversations that would result in spontaneous exhibitions of nudity via the computer or 4th generation cellular technology. Novel to this discussion, this article identifies a solution to the inconsistent and problematic application of individual state law to speech that can be created and globally disseminated in a matter …

Obstruction Of Justice: Unwarranted Expansion Of 18 U.S.C. 1512(C)(1), Sarah O. Schrup

Sarah O. Schrup

This Article suggests that prosecutors are misusing and courts are misinterpreting the Sarbanes-Oxley obstruction-of-justice statute, 18 U.S.C. § 1512(c)(1). As a result the statute is being applied far beyond the corporate-fraud or even general-fraud context to conduct that Congress never intended when enacting the statute. Such an expansive interpretation lays bare the ambiguity inherent in the statutory language. A proper statutory construction that explores the statute itself, related provisions, the canons of construction, the legislative history, and the investigatory process at the Securities and Exchange Commission shows that Congress could not have intended the limitless sweep of the statute that …

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their position of power results in massive deadweight losses for the entire economy as a result of their crimes. Further, this undermines the legitimacy of the rule of law and encourages …

Is The Exclusionary Rule Dead?, Craig M. Bradley

Craig M. Bradley

This article discusses the three most recent Supreme Court cases on the exclusionary rule, Hudson, Herring, and Davis. It is not unsympathetic to the Court's desire to create a non-mandatory rule. It argues, however, that the Court's decisions in these three cases has left a rule that is confused and seriously misconceived.

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.

What's Terrorism Got To Do With It? The Perils Of Prosecutorial Misuse Of Terrorism Offenses, Michal Buchhandler-Raphael

michal buchhandler-raphael

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism -- a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and …

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Helen A. Anderson

Burglary has been evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached …

“Bull” Coming From The States: Why The U.S. Supreme Court Should Use Williams V. Illinois To Close One Of Bullcoming’S Confrontation Clause Loopholes, Tara Klimek Price

Tara Price

Imagine that you are selected as a juror in a trial where the defendant is accused of driving while under the influence of alcohol. You listen to the police officer who testifies that he observed the defendant and believed him to be intoxicated. You hear about how after obtaining a warrant, the officer took the defendant to the emergency room for a blood-alcohol test. The police officer finishes his testimony, and the next witness will testify about the results of the defendant’s blood-alcohol test.

But before the witness can testify, defense counsel objects. Apparently, this is not the laboratory analyst …

What's Terrorism Got To Do With It? The Perils Of Prosecutorial Misuse Of Terrorism Offenses, Michal Buchhandler-Raphael

michal buchhandler-raphael

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism -- a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and …

The Greatest Measure Of Deterrence: A Conviction For Jean-Pierre Bemba Gombo, Houston Goodell

Houston Goodell

The landscape of modern warfare has changed dramatically over the past 100 years since World War I. While the weapons systems have all changed dramatically, many of the crimes perpetrated in warfare have remained the same. Although almost all of these crimes have been punished by various national and international courts, one crime – rape – has escaped prosecution until very recently. The International Criminal Court (ICC) is currently hearing the case of former Democratic Republic of the Congo (DRC) Vice-President Jean-Pierre Bemba Gombo. What makes Bemba Gombo’s case so unique is that, unlike the Serbians who were tried and …

Funding Gideon's Promise By Viewing Excessive Caseloads As Conflicts Of Interests, Heidi R. Anderson

Heidi R Anderson

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two—the one that has slipped by without sufficient notice or criticism—is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew Taslitz

Andrew E. Taslitz

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

Cruel And Unusual Federal Punishments, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct. This is the result of the confluence of two trends. First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court. Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

Brian Gallini

Disproportionate Representation Of Minority Youth In The Juvenile Justice System: A Lack Of Clarity And Too Much Disparity Among States "Addressing" The Issue, Elizabeth N. Jones

Elizabeth N Jones

This article explores how states are struggling to reduce the overrepresentation of youth of color in their juvenile justice systems by complying with the federal Juvenile Justice and Delinquency Prevention Act. The JJDPA provides funding for states following its directive to identify, assess, and reduce the disproportionate contact by minority youth with the juvenile justice system. This article queries whether the JJDPA is an effective instrument with which to seek racial parity for minority youth who are already “in contact” with the juvenile justice system. It first provides a brief history and overview of the JJDPA, highlighting three areas of …

The Global War On [?]: Crafting The Definition Of "International Terrorism", Kate Kovarovic

Kate Kovarovic

It is generally accepted that global acts of terrorism constitute breaches of international law. However, the increasing prevalence of such acts in recent years has revealed a startling deficiency in the field of international law, as no uniform definition of this “crime” actually exists. Such indeterminacy in the law undermines the stability and credibility of the international legal system, and prevents the global powers from holding perpetrators responsible for their actions. This Paper was drafted as a response to this deficiency, and thus isolates those consistent elements used as indicators of the crime of international terrorism, and presents a working …

Trading A Confession For A Search: A Proposal To Deter Texting While Driving And Warrantless Cell Phone Searches, Adam Gershowitz

Adam M. Gershowitz

Dozens of state legislatures have recently criminalized texting while driving. Unfortunately, these statutes are deeply flawed because they are under-inclusive, ambiguous, and impose punishments so light that they are unlikely to deter drivers. At the same time, by criminalizing texting while driving, legislatures have empowered police to conduct warrantless searches of drivers’ cell phones under the Fourth Amendment’s search incident to arrest and automobile exceptions. The disconnect is stark: For a crime that carries a $20 fine in some states, police are free to search a driver’s text messages, emails, internet browsing history, facebook account, photos, and countless other applications …

The Ballot As A Bulwark: The Impact Of Felony Disenfranchisement On Recidivism, Guy P. Hamilton-Smith, Matt Vogel

Guy P Hamilton-Smith

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article …

Getting Away With Murder (Most Of The Time): A Sesquicentennial Analysis Of Civil War Era Homicide Cases In Boone County, Missouri, Frank O. Bowman Iii

Frank O. Bowman III

In the quarter century centered on the Civil War, 1850-1875, fifty-three homicide cases came before the courts of Boone County, Missouri, of which Columbia, home of the University of Missouri, is the county seat. To remarkable degree, the story of these killings, told in this article, is a chronicle of the place and period.

The article’s method might be described as “murder as social history.” Its narrative thread is an effort to explain the remarkable fact that only twelve of the fifty-three defendants charged with murder were ever convicted of any form of criminal homicide. The explanation requires an introduction …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.

Missouri's Ring Tone: Jury Sentencing Rights In Death Penalty Cases, Jacqueline M. Whipple

Jacqueline M. Whipple

This Law Summary concerns recent developments in criminal law and the death penalty. It includes the national and state-specific legal background behind criminal defendants' rights regarding jury sentencing, and the latest interpretation and application of the U.S. Supreme Court's holding in Ring v. Arizona by the Missouri Supreme Court.

Graham On The Ground, Cara H. Drinan

Cara H. Drinan

In Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. What has yet to be examined are the thorny legal issues raised by Graham that judges and lawmakers need to address in the very short term. To whom does the Graham decision apply? What is …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Tough On Crime (On The State's Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates—And Why It Should

W. David Ball

California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.

But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is …

Dragnet Law Enforcement: Prolonged Surveillance & The Fourth Amendment, Anna-Karina Parker

Anna-Karina Parker

United States v. Pineda-Moreno recognized the need for warrantless tracking of vehicles, but United States v. Maynard correctly recognized the advancement of technology; the abuses that happen with technology; and most importantly the privacy of an individual in a social world. The D.C. Circuit took into account the significance of the privacy of an individual that is revealed when a GPS monitors for the sole purpose of putting together the daily movements and activities of an individual. This is an example of the dragnet type law enforcement that the Court in Knotts did not address when limiting its decision to …