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Criminal Law and Procedure

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Full-Text Articles in Law

The Culture Of Mass Incarceration: Why "Locking Them Up And Throwing Away The Key" Isn't Working And How Prison Conditions Can Be Improved, Melanie M. Reid Dec 2015

The Culture Of Mass Incarceration: Why "Locking Them Up And Throwing Away The Key" Isn't Working And How Prison Conditions Can Be Improved, Melanie M. Reid

Melanie M. Reid

No abstract provided.


"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless Dec 2015

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Scholars and law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework that relies on a contrast with people—citizens and noncitizens—who have been convicted of a criminal offense and proposes an alternate approach that better aligns with the racial critique of our criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many …


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow Dec 2015

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

This paper argues that there is a new neoliberal penality emerging in the United States that exhibits four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these characteristics, but the characteristics are not limited to the prison-industrial complex.

The paper draws on Foucault's concept of the prison as an institution primarily of individual normalization, but notes that it presupposes rehabilitation as the primary goal of the institution. Using Foucault's work in Discipline and Punish …


In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Dec 2015

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

The author provides the first critical analysis of safe harbor laws, which rely on custodial arrests to prosecute or divert youth arrested for or charged with prostitution related offenses under criminal or juvenile codes to court supervision under state child welfare, foster care, or dependency statutes. This subject is a matter of intense debate nationwide, and on January 27, 2015 the House of Representatives passed legislation that would give preferential consideration for federal grants to states that have enacted a law that “discourages the charging or prosecution” of a trafficked minor and encourages court-ordered treatment and institutionalization. Nearly universally lauded, …


Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi Dec 2015

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes—if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a “noncitizen presumption” of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with that risk increasingly seen as little different regarding noncitizens, at least those treated with dignity. Moreover, this “noncitizen presumption” of danger contravenes empirical evidence, and diverges from …


Modifying Unjust Sentences, E. Lea Johnston Aug 2015

Modifying Unjust Sentences, E. Lea Johnston

E. Lea Johnston

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence …


Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito Aug 2015

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.


Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami Jul 2015

Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami

Nasiruddin Nezaami

In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …


Is Capital Punishment Immoral Even If It Does Deter Murder? Jul 2015

Is Capital Punishment Immoral Even If It Does Deter Murder?

Thomas Kleven

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …


Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello Apr 2015

Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello

Monica B Carusello

No abstract provided.


In Case Of Confession, Andrea Lyon Feb 2015

In Case Of Confession, Andrea Lyon

Andrea D. Lyon

No abstract provided.


Find The Cost Of Freedom: The State Of Wrongful Conviction Compensation Statutes Across The Country And The Strange Legal Odyssey Of Timothy Atkins, Justin Brooks, Alexander Simpson Feb 2015

Find The Cost Of Freedom: The State Of Wrongful Conviction Compensation Statutes Across The Country And The Strange Legal Odyssey Of Timothy Atkins, Justin Brooks, Alexander Simpson

Justin P Brooks

Tim Atkins was wrongfully convicted of a crime he did not commit and spent 23 years in prison. Although compensation statutes like California's have admirable goals, Tim Atkins's case fell through some substantial cracks that prompted the Authors to write this Article. As two of the many lawyers who have worked on Tim's case over the years, it has been an incredibly frustrating journey to see him denied compensation after all that has been done to prove his innocence. California's statute is flawed and is being misinterpreted, just as other compensation statutes are flawed and misinterpreted around the country. This …


Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon Feb 2015

Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon

Andrea D. Lyon

No abstract provided.


The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon Feb 2015

The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon

Andrea D. Lyon

No abstract provided.


The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele Feb 2015

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the petitioners …


Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello Jan 2015

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.


Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer Dec 2014

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …


Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid Dec 2014

Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid

Melanie M. Reid

On July 8, 2013, 30,000 prisoners in California joined a hunger strike organized by gang members kept in Pelican Bay’s Security Housing Unit and argued that solitary confinement constituted cruel and unusual punishment. As a result of his confinement, one inmate involved in the hunger strike stated that he felt as if all his ties to humanity had been severed. Every country, in some form or another, imprisons and isolates individuals for two common reasons: to punish or to protect society from the person’s anticipated future conduct. This article examines the relationship between crime and punishment and evaluates the four …


Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy Dec 2014

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …


Government Secrets: The Public's Misconceptions Of The Snowden Disclosures, Melanie M. Reid Dec 2014

Government Secrets: The Public's Misconceptions Of The Snowden Disclosures, Melanie M. Reid

Melanie M. Reid

No abstract provided.


Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters And The Good Wife Got It Wrong, Melanie M. Reid Dec 2014

Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters And The Good Wife Got It Wrong, Melanie M. Reid

Melanie M. Reid

The recent disclosures of secret U.S. government surveillance programs have brought to the forefront how intelligence agencies should manage the gathering and analysis of intelligence collected and when and how best to pass that information on to law enforcement. What is first collected for national security purposes can now potentially be used in a criminal trial. Law enforcement agents are said to utilize “parallel construction” to hide the original source which initiated the criminal investigation and develop their own evidence independent from this original source. Since the “wall” between intelligence agencies and law enforcement agencies fell down post-9/11 and intelligence …


Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters Got It Wrong, Melanie M. Reid Dec 2014

Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters Got It Wrong, Melanie M. Reid

Melanie M. Reid

No abstract provided.


The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin Dec 2014

The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin

Bryan H. Druzin

Michel Foucault famously argued that punishment was an expression of power—a way for the State to shore up and legitimize its political authority. Foucault attributed the historical shift away from public torture and corporal punishment, which occurred during the 19th century, to the availability of new techniques of social control. However, corporal and capital punishment (what we term shock punishment) persists in many penal systems to this day, suggesting that these countries have for some reason not fully undergone this penal evolution. Using the experiences of Hong Kong and Singapore as case studies, we attempt to explain why this is …


Criminal Forfeiture Procedure In 2015: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella Dec 2014

Criminal Forfeiture Procedure In 2015: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is another in a series of articles on developments in the federal case law relating to criminal forfeiture procedure. It covers the cases decided in 2014 and early 2015.

Like the earlier articles in this series, this one does not attempt to address every topic related to criminal forfeiture, nor all of the exceptions and nuances that apply to the topics that are addressed; rather, it covers only those matters on which there was a significant development in the case law in the past year. Thus a basic familiarity with federal criminal forfeiture procedure is assumed.

The Article begins …


Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless Dec 2014

Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizens client of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly …


Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola Dec 2014

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Sheri Lynn Johnson

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …


Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds Dec 2014

Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds

Sheri Lynn Johnson

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical …


Looking Deathworthy: Perceived Stereotypicality Of Black Defendants Predicts Capital-Sentencing Outcomes, Jennifer L. Eberhardt, P G. Davies, Valerie J. Purdie-Vaughns, Sheri Lynn Johnson Dec 2014

Looking Deathworthy: Perceived Stereotypicality Of Black Defendants Predicts Capital-Sentencing Outcomes, Jennifer L. Eberhardt, P G. Davies, Valerie J. Purdie-Vaughns, Sheri Lynn Johnson

Sheri Lynn Johnson

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.


Racism, Unreasonable Belief, And Bernhard Goetz, Stephen P. Garvey Dec 2014

Racism, Unreasonable Belief, And Bernhard Goetz, Stephen P. Garvey

Stephen P. Garvey

How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? The canonical case raising this question is People v. Goetz. Some commentators argue that norms of equal treatment and anti-discrimination require that D’s claim of self-defense be rejected. I argue that denying D’s claim of self-defense would be at odds with the principle that criminal liability should only be imposed on an actor if …


What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey Dec 2014

What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey

Stephen P. Garvey

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of …