Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

Sexual Abuse Of Male Juveniles In Detention Centers By Female Correction Officers And Their Peers – A Myth?, Paul Cook

Paul Cook

This Comment both reveals the nature and dynamic of sexual abuse in the male juvenile detention centers and dispels common misconceptions we had of it. By comparing and contrasting the BJS male and juvenile incarceration data with previously projected statistics, This Comment subjected these sets of data through statistical formulas. From that, it has made several findings.1) Male juveniles appear to be more frequently abused when detained. 2) Staff are the primary perpetrators. 3) There are both overt and non-overt traits that correlate to higher rates of sexual abuse. 4) White male juveniles have a higher correlation to sexual abuse …

The Zombie Pandemic In Florida, Anita A. Digiacomo Esq.

Anita A. DiGiacomo

A zombie is currently defined as “an animated corpse that feeds on living human flesh.” The Centers for Disease Control and Prevention contend that zombies are typically “created by an infectious virus, which is passed on via bites and contact with bodily fluids.” The vehicle for the spread of infection will depend on the nature of the virus that causes the zombie outbreak. However, due to the nature of zombies, it is more than likely that the main mode of transferring the virus, will be through bites or scratches. The zombie body consists of the reanimated human body, and as …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Moral Understanding And Criminal Responsibility Of Psychopaths: Evolution Of A Meta-Ethical Niche, William Watson

William Watson

A growing body of moral and legal philosophical analysis both highlights the relevance of research findings on psychopathy for the theory of responsibility, and argues for the responsibility, non-responsibility or partial responsibility of psychopaths, in most cases taking criminal responsibility to flow from moral responsibility. Although not the only grounds of analysis, the moral psychological concern with the nature of moral understanding, and the questions of whether and to what degree psychopaths have it, are issues at the centre of the debate. This paper identifies four approaches to these issues: Rationalist Motivational Internalism; Sentimentalist Motivational Internalism; Conduct Rationality Holism, an …

Mental Illness, Police Power Interventions, And The Expressive Functions Of Punishment, Robert F. Schopp

Robert F Schopp

The state exercises coercive force under the police power to protect the public order, security, and justice. When individuals who manifest significant psychological impairment harm or endanger others, police power interventions can involve several different institutional structures within the criminal justice system or the alternative institution of civil commitment. The analysis presented in this paper draws attention to the significance of the expressive functions of criminal punishment in selecting the most justified institutional structures for police power interventions intended to prevent impaired individuals from harming others. These functions arguably carry important implications for impaired individuals who harm or endanger others, …

A Better Agenda For The Sentencing Commission: Reducing Mass Incarceration, Lynn Adelman

Lynn Adelman

Abstract The United States presently incarcerates about 2.3 million people. We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners. Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly. The federal government contributes significantly to this problem. Every week it locks up a record number of …

Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin

Brittani N. Baldwin

No abstract provided.

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

David N Cassuto

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict. This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of …

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

New Data And New Questions: Trac's Contribution To Federal Sentencing, Steven Chanenson, Douglas Berman

Steven L. Chanenson

No abstract provided.

“Stand Your Ground” Laws And Justice: The Controversy Over Immunity To Criminal Prosecution, Talon R. Hurst

Talon R Hurst

“Stand Your Ground” laws have received a plethora of media attention in 2012, none of which have been in a positive light. These laws providing a person with immunity from criminal prosecution are now being scrutinized for their confusing nature. “Stand Your Ground” laws allow a person to stand his or her ground and meet force with force, including deadly force, when specific requirements are met. These laws intend for law-abiding citizens to protect themselves and others without fear of being criminally prosecuted. However, they often don not provide consistent guidelines to enforce and apply the immunity. Therefore, two persons …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

Error In Persona Vel In Objecto And Aberratio Ictus Vel Impitus: A Transferred Malice?, Khalid Ghanayim

Khalid Ghanayim

No abstract provided.

Race And The Death Penalty: An Empirical Assessment Of First Degree Murder Convictions In Tennessee After Gregg V. Georgia, John M. Scheb Ii, Hemant K. Sharma, David J. Houston, Kristin Wagers

John M Scheb II

We analyze over 1,000 first-degree murder convictions in the state of Tennessee from 1977 through 2007 to determine if either “race-of-defendant” or “race-of-victim” effects are present when it comes to the application of capital punishment. We control for numerous factors related to the demographics of offender and victim, as well as the circumstances of the crime itself and the availability of evidence. Our primary findings note that prosecutors are more likely to seek a death sentence when a victim is white, but we also find that juries are not affected by the race of the victim. We also find no …

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

Slow Acid Drips And Evidentiary Nightmares: Smoothing Out The Rough Justice Of Child Pornography Restitution With A Presumed Damages Theory, Mary Margaret Giannini

Mary Margaret Giannini

The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson

College of Law - Student Research & Writing Projects

Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about …

Gist In The Mist: What Is The Gist Of The Mail Fraud Statute And Why Should We Care?, C.J. Williams

C.J. Williams

This article explores the origin of the accepted truism that each mailing in furtherance of a scheme to defraud constitutes a separate mail fraud offense, finding it is based upon Supreme Court precedent interpreting a prior, and very different version, of the mail fraud statute. The article examines the language of the current mail fraud statute, compares it to other fraud statutes modeled on the mail fraud statute, and concludes each mailing should not be the unit of prosecution under the current language of the statute. The article discusses the problems that arise from considering each mailing in furtherance of …

Gist In The Mist: What Is The Gist Of The Mail Fraud Statute And Why Should We Care?, C.J. Williams

C.J. Williams

This article explores the origin of the accepted truism that each mailing in furtherance of a scheme to defraud constitutes a separate mail fraud offense, finding it is based upon Supreme Court precedent interpreting a prior, and very different version, of the mail fraud statute. The article examines the language of the current mail fraud statute, compares it to other fraud statutes modeled on the mail fraud statute, and concludes each mailing should not be the unit of prosecution under the current language of the statute. The article discusses the problems that arise from considering each mailing in furtherance of …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

Police Cell Phone Searches: Where's The Privacy?, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

Chinese Homicide Law, Irrationality And Incremental Change, Michael Vitiello

Michael Vitiello

Abstract: Chinese Homicide Law, Irrationality and Incremental Change This article begins with a striking hypothetical: “Having learned that his wife was having an affair, the defendant mulled over his options. After deliberation, he decided to shoot her and her lover. Sneaking up on them as they sat together in an isolated area, the defendant shot each in the chest. Because they were far from the nearest city, they received no first aid and both bled to death. Charged with first degree murder, the defendant has asked you to represent him. In your first interview, the defendant explains that he did …

Gist In The Mist: What Is The Gist Of The Mail Fraud Statute And Why Should We Care?, C.J. Williams

C.J. Williams

This article explores the origin of the accepted truism that each mailing in furtherance of a scheme to defraud constitutes a separate mail fraud offense, finding it is based upon Supreme Court precedent interpreting a prior, and very different version, of the mail fraud statute. The article examines the language of the current mail fraud statute, compares it to other fraud statutes modeled on the mail fraud statute, and concludes each mailing should not be the unit of prosecution under the current language of the statute. The article discusses the problems that arise from considering each mailing in furtherance of …