Law Commons^™

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

How To Change The Philosophy And Practice Of Probation And Supervised Release: Data Analytics, Cost Control, Focus On Reentry, And A Clear Mission, Nora V. Demleitner

Scholarly Articles

None available.

Living On The Edge, Sorting Out The Rules: Advantage Play Cuts The Risk Of Losing Money In A Casino, And Puts Players At Risk Of Incurring Legal Action, Kevin Schweitzer

UNLV Gaming Law Journal

No abstract provided.

Guns And Drugs, Benjamin Levin

Fordham Law Review

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

The Persistence Of Fatal Police Taserings, Part 2, Donald E. Wilkes Jr.

Popular Media

This article updates the author's previous article on the statistics on deaths resulting from police taserings.

Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.'Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in …

The Persistence Of Fatal Police Taserings, Donald E. Wilkes Jr.

Popular Media

There is, newfound interest in obtaining accurate information about police use of force in this country. This means, among other things, that we need reliable statistics about police violence. We cannot address the problem of unlawful police violence unless we possess adequate statistical information about all police violence, lawful as well as unlawful.

This article explores the violence of police tasering and the statistics of this practice.

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

Expanding Public Safety In The Era Of Black Lives Matter, Nicole D. Porter

University of Miami Law Review

Traditional public safety responses to crime involve interactions with the criminal justice system. However, recent killings by police of unarmed black men, women, and children have led to a national dialogue on the fundamental strategy of public safety. The narrative of “Black Lives Matter” offers a new framework for policymakers, activists, practitioners, and other stakeholders to think about a public safety strategy that is not solely defined by arrests and admissions to prison. This essay provides an overview of evidence-based approaches for public safety interventions that exist outside of law enforcement interactions.

Environmental Crimes And Imprisonment: Does Prison Work To Prevent And Punish Environmental Criminals?, Rafael Wolff

Dissertations & Theses

Environmental degradation is a global problem. Humans need natural resources to survive and, as those resources are limited, humans’ use of these resources should respect a sustainable pace established by law. There are many approaches to addressing environmental degradation that do not honor the legal limitations and one of them is through criminal law. The question that is posed in this thesis is whether imprisonment, one of the most severe methods of punishment, is a suitable option to repress and prevent environmental crimes.

This thesis is divided in three chapters. The first chapter discusses why environmental crimes are relevant. It …

Criminal Defense Clinic, Legal Clinic Program

Course Descriptions and Information

This clinic focuses on the representation of indigent clients charged with misdemeanor criminal offenses in county courts in the Ninth Judicial Circuit of Florida. Students will represent low-income clients charged with misdemeanor criminal offenses from the surrounding community as well as those defendants appointed by the court who qualify for free legal services.

Conspiracy As Contract, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

This article considers the central concept of criminal conspiracy — the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how “agreement” in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting “mutual understanding” or “slight connection,” leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae Quinn, Eirik Cheverud

Journal Articles

This Article advances a simple claim in need of enforcement in this country right now: no person may be arrested for an alleged violation of civil, as opposed to criminal, law. Indeed, courts have long interpreted the Fourth Amendment as prohibiting arrest except when probable cause exists to believe that a crime has been committed and that the defendant is the person who committed the crime. However, in many places police take citizens into custody without a warrant for the non-criminal conduct of allegedly breaking civil laws. This unfortunate phenomenon received national attention in St. Louis, Missouri following the death …

A Domestic Consequence Of The Government Spying On Its Citizens: The Guilty Go Free, Mystica M. Alexander, William P. Wiggins

Brooklyn Law Review

In recent years, a seemingly endless stream of headlines have alerted people to the steady and relentless government encroachment on their civil liberties. Consider, for example, headlines such as “U.S. Directs Agents to Cover Up Program Used to Investigate Americans,” “DEA Admits to Keeping Secret Database of Phone Calls,” or “No Morsel Too Miniscule for All-Consuming N.S.A.” Of concern is not only the U.S. government’s collection of data on its citizens, but also how that information is aggregated, stored, and used. The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. While the drafters of the Fourth …

Roe V. Wade & The Legal Implications Of State Constitutional "Personhood" Amendments, Clark D. Forsythe, Keith Arago

Notre Dame Journal of Law, Ethics & Public Policy

Two generations after the renewed focus on state constitutions, questions remain whether state constitutional amendments are an effective means for changing public policy, for protecting human life, or for challenging Roe v. Wade. Our aim in this article is to examine their likely legal impact on state law and their legal impact on Roe v. Wade. Part II summarizes the history and current legal protection for the unborn child as a human being or person in the law. Part III examines whether these "personhood" amendments conflict with Roe. Part IV looks at the practical legal implications of applying the due …

Principled Policing: Warrior Cops And Guardian Officers, Seth W. Stoughton

Faculty Publications

Policing in the United States is in crisis. Public confidence in policing is at the lowest point since the Rodney King beating. A bare majority of Americans still report confidence in the police, and an unprecedented number of people report no or very little confidence in policing. A long history of poor police/community relations in minority and low-income neighborhoods has been exacerbated by egregious acts of misconduct, some of which have been captured on video and shared on social media. Activists, politicians, and police officials themselves have called for better education and equipment, from de-escalation training to body-worn camera systems. …

Socializing The Subject Of Criminal Law? Criminal Responsibility And The Purposes Of Criminalization, Nicola Lacey

Marquette Law Review

none

The Matthew Shepard And James Byrd, Jr., Hate Crimes Prevention Act: A Criminal Perspective, Meredith Boram

University of Baltimore Law Review

[H]ate crimes ... leave deep scars not only on the victims, but on our larger community. They weaken the sense that we are one people with common values and a common future. They tear us apart when we should be moving closer together. They are acts of violence against America itself.. . As part of our preparation for the new century, it is time for us to mount an all-out assault on hate crimes, to punish them swiftly and severely, and to do more to prevent them from happening in the first place. We must begin with a deeper understanding …

Mind The Gap: A Systematic Approach To The International Criminal Court's Arrest Warrants Enforcement Problem, Nadia Banteka

Scholarly Publications

International Criminal Courts and Tribunals ("ICCTs") have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers due to the absence of systemic law enforcement. This Article is premised on the idea that ICCTs fail to procure substantial results due to their delusive persistence in rejecting the factoring of politics in their operation. Thus, I suggest a perspective for arrest warrant enforcement that not only recognizes the relevance of politics but also capitalizes on it. I argue that by fully comprehending its enforcement tools and making use of its political role, the …

Conspiracy As Contract, Laurent Sacharoff

Hofstra Law Faculty Scholarship

This article considers the central concept of criminal conspiracy – the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how "agreement" in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting "mutual understanding" or "slight connection," leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Reasonable Doubt And Moral Elements, Youngjae Lee

Faculty Scholarship

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

Attempting The Unintended: The Problems With Recognizing An Attempted Homicide Offense That Does Not Require Proof Of An Intent-To-Kill, Richard Sanders

St. Thomas Law Review

Start with a simple syllogism: (1) The mental element of the Florida "offense of criminal attempt" is an "inten[t] to commit [an] offense"; (2) it is logically impossible to intend to do something that one does not intend to do, such as intend to cause an unintended harm; so therefore (3) "[t]here is no such criminal offense as an attempt to achieve an unintended [harm]," because it is logically impossible to intend, and thus to attempt, to commit an offense that has an element of causing-unintended-harm. Call this the attempt logic. Most courts accept this logic as to homicide offenses, …

From The Sophisticated Undertakings Of The Genovese Crime Family To The Everyday Criminal: The Loss Of Congressional Intent In Modern Criminal Rico Application, Emily A. Donaher

St. Thomas Law Review

Due to the unmanageable development of organized crime in America, principally the growth of La Cosa Nostra, Congress enacted the Organized Crime Control Act of 1970. Through this Act, Congress intended to eliminate organized crime, by criminalizing not only the syndicate but also the activities in which it was engaged. Congress then passed the Racketeer Influenced and Corrupt Organizations Act (RICO), which was to preclude organized crime from infiltrating legitimate American businesses. Although Congress intended courts to construe the RICO statute liberally to combat organized crime, in some cases, American courts have taken this liberal construction too far. The RICO …

A Federal Certificate Of Rehabilitation Program: Providing Federal Ex-Offenders More Opportunity For Successful Reentry, Lisa A. Rich

Faculty Scholarship

The purpose of this Article is to propose a new federal certificate of rehabilitation program. The creation of such a program not only would help the thousands of federal offenders released back into their communities every year overcome employment barriers but would also serve as a model for states to use in addressing the need of their own burgeoning population of former offenders. In order to understand the magnitude of the problem, it is essential to understand the pool of offenders affected by their criminal history, the intent of the federal agencies to assist this disadvantaged group, and the barriers …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich George Mason University

Washington and Lee Law Review

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …