Criminal Law Commons^™

Volume 6, Issue 1 (2023) Criminal Justice Agents And Responsibility, Colleen Berryessa, Elizabeth Griffiths, Kaitlen Hubbard, Deena A. Isom, Kateryna Kaplun, Hiuxuan Li, Siyu Liu, Esther Nir, Heather L. Scheuerman, Rachel Schumann, Sandy Xie, Carolyn Yule

International Journal on Responsibility

This special issue of the International Journal on Responsibility (IJR) advances scholarship on the various ways responsibility infuses the roles of criminal justice agents. As the inaugural issue of my tenure as Editor-in-Chief, Volume 6 deepens our understanding of responsibility in the context of the criminal justice system, thereby fulfilling IJR’s aim and scope. Specifically, the articles highlight issues of responsibility within each component of the criminal justice system: police, courts, and corrections.

Holding The Big House Accountable: The Sixth Circuit Concludes A Pretrial Detainee's Fourteenth Amendment Deliberate Indifference Claim Is A Wholly Objective Determination, Noah Speitel

Villanova Law Review (1956 - )

No abstract provided.

Capital Punishment, Carlos Wood

Mercer Law Review

In Glossip v. Gross, a 2015 Supreme Court of the United States case that addressed the constitutionality of Oklahoma’s lethal injection protocol, Justice Breyer authored a dissent, joined by Justice Ginsburg, in which he noted the declining use of the death penalty in the United States. Justice Breyer began his dissent by noting the downward trajectory of the number of convictions that resulted in capital sentences. The evidence he cited included the following: from 1986 to 1999, approximately 300 people on average were sentenced to death every year, but in 2000, this number began to decline rapidly. In 2014, …

Criminal Law And Procedure, Lauren E. Brice, Michelle C. F. Derrico

University of Richmond Law Review

It has been another busy year in the General Assembly and in the appellate courts of Virginia, especially with the recently expanded Court of Appeals. Areas in which the General Assembly made significant changes are now filtering to the appellate courts for interpretation. There have been a number of significant opinions in retroactivity of statutes, probation violations, and mental health.

Terror And Tenderness In Criminal Law, M. Eve Hanan

Cardozo Law Review

Sentencing reductions, executive pardons, prison release programs, and progressive prosecutors have something in common. In word choice and design, they suggest tempering the violence of criminal law in a limited number of cases. The prisoner may be released early based on a record of good behavior. The President may grant clemency to those sentenced in an earlier era to decades in prison for a drug crime. The prosecutor may recommend drug court rather than a jail sentence to a defendant addicted to illegal substances. In the era of “smart on crime,” reform often comes through expanding these mechanisms of relief …

Jd And Me: Exploring Hybrid Representation Of Pro Se Defendants In Capital Murder Cases, Andrew Wick

Et Cetera

The United States Constitution grants those facing the loss of life and liberty the right to due process and a fair trial under the law. What can be done to ensure criminal defendants facing the death penalty feel as though their desired argument and defense will be presented while still having the appearance of a fair trial? This Article compares a person the law says is qualified to waive counsel and represent themselves and a person qualified to be appointed to represent those facing the death penalty, what is required to waive counsel, the involvement of the trial court and …

Clemency: A Tool For Extreme And Discriminatory Sentences, Kathryn Miller, Jonathan H. Oberman, Cardozo Criminal Defense Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

A Comparative Analysis Of Criminal Justice Systems In The United States And Scandinavia, Tyler Truelock

Ohio Northern University International Law Journal

No abstract provided.

Walking With Shadows And Phantoms: The Presumption Of Innocence And Bail Determinations, Davis Badger Anderson

Buffalo Law Review

One-hundred and twenty-eight years after “the Supreme Court of the United States had an opportunity to clear up the confusion and ambiguity that hang[s] over the common talk about the presumption of innocence,”1 the confusion persists. This lingering confusion is at its most stringent in federal bail determinations where, despite legislative intent, precedent, and logic to the contrary, it is invoked to discount the weight of the evidence against the defendant in deciding what conditions will secure presence at trial or safety to the community. Furthermore, the presumption’s path from an instrument of proof to its status as a right …

Perlmutter Center For Legal Justice At Cardozo Law Asks Ny Governor Kathy Hochul To Sign Wrongful Convictions Act, Josh Dubin

Perlmutter Center Letters

The Law expands legal recourse for those wrongfully convicted including the right to counsel and the ability to challenge flawed scientific evidence.

The Perlmutter Center for Legal Justice at Cardozo Law has asked New York State Governor Kathy Hochul to sign the Challenging Wrongful Convictions Act.

The law (S.7548) was passed by both houses of the New York State legislature. If signed, it will expand legal recourse for those wrongfully convicted in New York including the right to counsel, the ability to challenge flawed or outdated scientific evidence, gives innocent people who pleaded guilty the right to apply for post …

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini

Pepperdine Law Review

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

After The Criminal Justice System, Benjamin Levin

Washington Law Review

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the “criminal legal system,” the “criminal punishment system,” the “prison industrial complex,” and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices …

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Articles

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Innocent Until Proven Mentally Incompetent., Jade Smith

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

The Death Penalty Seals Racial Minorities’ Fate: The Unfortunate Realities Of Being A Racial Minority In America., Sarah Garcia

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

A Call For Effective Leniency: How The Circuit Split Regarding The Prison Mailbox Rule Fails To Properly Alleviate Issues For Prisoners, Shelby E. Parks

MC Law Review

The prison population has long been an overlooked segment of society. This is particularly true when it comes to pro se litigants within the federal prison system. A pro so litigant is someone involved in litigation, whether civil or criminal, and is representing themselves instead of being represented by an attorney. In other words, pro se prisoners do not have the aid of counsel at their disposal. Although it is an individual’s constitutional right to represent themselves, it can come at a cost, especially when it comes to understanding the nuances of civil or criminal court procedure. For pro se …

Preface: New Directions In Prosecutorial Reform, Miriam Aroni Krinsky, Justin Murray, Maybell Romero

Articles & Chapters

This Preface, which introduces the American Criminal Law Review’s Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrong- ful convictions began to permeate the public consciousness, many communities focused their attention on the critical role of their local elected prosecutor and elected leaders who promised to do the job differently. Reform-minded prosecu- tors have enjoyed remarkable electoral successes over the past decade such that close to twenty percent of the U.S. population now resides in a jurisdiction …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Face Recognition Under Adverse Viewing Conditions: Implications For Eyewitness Testimony, Charles C. F. Or, Denise Y. Lim, Siyuan Chen, Alan L. F. Lee

Research Collection Yong Pung How School Of Law

Eyewitness testimony forms an important component in deciding whether a case can be prosecuted. Yet, many criminal perpetrators deliberately conceal their faces with disguises or under dim lighting, undermining eyewitness accuracy. This article reviews recent studies to characterize the factors that impair face recognition performance, specifically, various forms of face disguise (e.g., face masks, sunglasses) and different lighting conditions. Research shows that identification accuracy, alongside eyewitness confidence and decision bias, all affect the reliability of eyewitness accounts. A consistent finding across studies is that face-identification accuracy can be improved by matching the viewing conditions during the police lineup with those …

A Rights-Based Approach To Determining Venue For Immigration Removal Hearings, Maleah Bradley

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Juvenile Genetic Privacy In New York: Dna Collection And Maintenance Post-Francis O., Cassidy Moon

Cardozo Journal of Equal Rights & Social Justice

The note argues that the compulsory collection and indefinite maintenance of juvenile forensic DNA profiles violate the Fourth Amendment's protection against unreasonable searches and seizures. It asserts that such practices are particularly problematic for minors due to their heightened privacy interests, the low recidivism rates among juveniles, and the contradiction with the juvenile justice system's focus on rehabilitation and confidentiality. The note advocates for legislative reforms, such as New York Senate Bills 998 and 3104, to address these issues and protect juveniles' privacy rights.

Public Defenders As Gatekeepers Of Freedom, Alma Magaña

Articles

Nearly half a million people are currently held in pretrial detention across the United States. Legal scholarship has explored many of the actors and factors contributing to the deprivation of freedom of those presumed innocent. And while the scholarship in these areas is rich, it has primarily focused on certain system actors—including judges, prosecutors, and profit-seeking sheriffs—structural concerns, such as the role race plays in who is being held in pretrial detention, or critiques of the failed promise of algorithms to deliver on bias-free bail determinations. But relatively little scholarship exists about the contributions of public defenders to this deprivation. …

The Ever-Shifting Ground Of Pretrial Detention Reform, Jenny E. Carroll

Faculty Scholarship

In the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

Standardization Of A Technique For Obtaining Dna From Footprints, Gibrán Galindo-Martinez, Karla Villarreal-Sotelo, Cynthia Marisol Vargas-Orozco, Ernesto Leal-Sotelo, Ignacio Hernandez-Rodriguez, José Francisco Flores-Gómez, Esperanza Milagros Garcia-Oropesa

Research Symposium

Currently our country has high numbers of missing persons, Tamaulipas being one of the states with the highest rate of disappearances. The identification of people has become more important thanks to the development of molecular techniques. However, the limitations are very high, because it is necessary to compare the genetic pattern of the disappeared with the parents. Therefore, the objective of this research is to standardize a genomic DNA extraction technique from contact surfaces for its subsequent implementation in the identification of disappeared, allowing the comparison of the genetic pattern with the disappeared itself. For this, genomic DNA extraction was …

When Innocence Is Not Enough: A Conversation With Tom Dybdahl, Author Of “When Innocence Is Not Enough: Hidden Evidence And The Failed Promise Of The Brady Rule”, Cardozo Criminal Defense Clinic

2023–2024 Flyers

No abstract provided.

A Conversation With Tom Dybdahl, Author Of “When Innocence Is Not Enough: Hidden Evidence And The Failed Promise Of The Brady Rule”, Cardozo Criminal Defense Clinic

2023 Event Invitations

The Supreme Court’s Brady rule of 1963 requires prosecutors to share favorable evidence with defendants. Dybdahl’s book reveals how a series of legal decisions have made it ineffective. Hear what’s at stake when prosecutors conceal evidence, and what can be done about it.

Put The Juvenile Back In Juvenile Court, Erin Fitzgerald

Villanova Law Review (1956 - )

No abstract provided.