Criminal Law Commons^™

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

Emergency Parole Release For Older Parole-Eligible Doc Inmates, David I. Bruck

Scholarly Articles

Professor Bruck writes to Secretary Moran and Chairwoman Bennett to urge them to protect elderly Virginia prison inmates from the risk of death from COVID-19 by granting immediate parole release to as many over-60 parole-eligible prisoners as possible, upon a showing that they are at low risk to re-offend, and have a supportive home to go to once released.

The Probationer, The Free Man, And The Fourth Amendment: Constitutional Protections For Those Who Have Served Their Sentences And Those Who Have Not, Rachel Ness-Maddox

Mercer Law Review

In Park v. State, the Georgia Supreme Court evaluated whether persons convicted of sexual offenses and subsequently classified as "sexually dangerous predator[s]" may be required to wear Global Positioning System (GPS) tracking devices after serving their full sentences, including fulfilling probation or parole requirements. The court held that, under the Fourth Amendment of the United States Constitution, such a requirement is invalid because it infringes on the right free people have against unreasonable searches and seizures executed by the state—no matter the crimes for which they were convicted or their status as registered sex offenders. However, the court made …

Narrative, Culture, And Individuation: A Criminal Defense Lawyer’S Race-Conscious Approach To Reduce Implicit Bias For Latinxs, Walter I. Goncalves Jr.

Seattle Journal for Social Justice

No abstract provided.

Cameras Down, Hands Up: How The Supreme Court Chilled The Development Of The First Amendment Right To Record The Police, Christina Murray

Mercer Law Review

You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.

This Comment will track the development of the right to record …

Shoot At Me Once: Shame On You! Shoot At Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders, Jameson M. Fisher

Mercer Law Review

Qualified immunity is a judicially created doctrine that has resulted in expansive protections for lower-level state officials for constitutional violations. Guidance from the Supreme Court of the United States regarding the interpretation of "clearly established rights" has been scarce and vague at best. As a result, district courts faced with qualified immunity assertions regarding a § 1983 claim take a restrictive approach to the doctrine's analysis often by relying on factually similar cases from binding authorities. Historically, innocent bystanders have had no clearly established right to be free from excessive force where force was applied to subdue the target of …

It's All In The Dna—How United States V. Hano Extends The Statute Of Limitations For The Eleventh Circuit, Caroline Walker

Mercer Law Review

It is likely that most professionals in all industries would agree that technology is rapidly evolving, most considering that assertion as a major understatement and some struggling to balance the variety of changes. In the legal realm, the DNA revolution has impacted both criminal prosecution and defense, specifically wrongful convictions, exonerations, proof of guilt at trial, and the reopening of cold cases. For example, since the first DNA exoneration in 1989, there have been 367 DNA exonerees in thirty-seven states to date. Forty-four percent of the exonerations involved misapplication of forensic science. Other law enforcement tools, such as rape kits …

An Uneven Playing Field: The Government Extended Rights Denied To Defendants On Appeal, Breyana Fleming

Mercer Law Review

Many people find themselves in the crosshairs of the criminal justice system as defendants. In preparing to defend themselves against the charges being brought by the government, these defendants cannot predict whether the outcome of a criminal proceeding will result in a finding of innocence or guilt. Defendants can, however, generally depend on uniformity in the law as it pertains to appellate procedure. Still, there are times where this uniformity will be sacrificed, and further, when it will be done in an unjust manner. For instance, when an appellate court allows the federal government to maintain an argument against a …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Decriminalizing Non-Appearance In Washington State: The Problem And Solutions For Washington’S Bail Jumping Statute And Court Nonappearance, Aleksandrea Johnson

Seattle Journal for Social Justice

No abstract provided.

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

Federal Sentencing: A Judge’S Personal Sentencing Journey Told Through The Voices Of Offenders He Sentenced, Mark W. Bennett

Washington and Lee Journal of Civil Rights and Social Justice

Federal sentencing is a tragic mess. Thirty years of conflicting legislative experiments began with high hopes but resulted in mass incarceration. Federal sentences, especially in drug cases, are all too often bone-crushingly severe.

In this Article, the Honorable Mark Bennett, a retired federal judge, shares about his journey with federal sentencing and his strong disagreement with the U.S. Sentencing Guidelines by telling the stories of some of the 400 men and women he sentenced during his twenty-five years as a federal judge.

Reforming Federal Sentencing: A Call For Equality-Infused Menschlichkeit, Nora V. Demleitner

Washington and Lee Journal of Civil Rights and Social Justice

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment. Sentencing has long been unfair to minority defendants, African-Americans in particular, though the guidelines have in part mitigated racial disparities. Still the injustices perpetuated through …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Washington and Lee Journal of Civil Rights and Social Justice

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal …

Technology’S Influence On Federal Sentencing: Past, Present, And Future, Matthew G. Rowland

Washington and Lee Journal of Civil Rights and Social Justice

The comprehensive reforms that govern today’s federal sentencing processes were fashioned nearly forty years ago. Those reforms were designed to address concerns regarding the effectiveness, transparency, and fairness of the preexisting indeterminant sentencing system. Today, criticisms are mounting against the very reforms that were once held out to save the sentencing process. The more determinant system is being accused of being biased against minorities, overly harsh, and costly.

This Article explores how the criminal justice system might look to technology and build on the practical experience from the indeterminant and determinant systems. Tools such as Artificial Intelligence (AI) can help …

Crime And Punishment: Considering Prison Disciplinary Sanctions As Grounds For Departure Under The U.S. Sentencing Guidelines, Madison Peace

Washington and Lee Journal of Civil Rights and Social Justice

There are currently over 175,000 federal inmates in the United States, 146,000 of whom are held in custody by the Federal Bureau of Prisons. When an inmate in federal prison commits a federal crime, he can be both sanctioned by the Federal Bureau of Prisons and referred to a United States Attorney for prosecution of the crime in federal district court. In the federal district court, a judge will look to the U.S. Sentencing Guidelines as a starting point to determine an appropriate sentence.

One question that the U.S. Sentencing Commission has not addressed, and on which federal appellate courts …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae C. Quinn, Grace R. Mclaughlin

Washington and Lee Journal of Civil Rights and Social Justice

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

Not All Videos Are Created Equal: Camera Perspective Bias And Video-Recorded Eyewitness Identification Procedures, Kelsey N. Doherty

Student Theses

Video-recorded eyewitness identification procedures can preserve an accurate record of the conditions under which the eyewitness made an identification. Scholars posit that having the record will allow legal actors to make better decisions on the basis of an identification. Yet limited research has examined how jurors’ judgments are influenced by this evidence. Research on other types of video-recorded evidence has demonstrated a strong camera perspective bias, wherein jurors’ judgments are influenced by the angle with which the evidence is recorded. This study examined whether the camera perspective bias similarly influences jurors’ perceptions of video-recorded identification procedures. Participants viewed a mock …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Washington and Lee Law Review Online

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

Breaking The Cycle: How Nevada Can Effectuate Meaningful Criminal Justice Reform, Scott Cooper, Scott Whitworth

Nevada Law Journal Forum

Why does society punish criminals? This paper examines what Nevada is attempting to accomplish through enacting and enforcing its criminal laws. We examine the current state of, as well as the challenges facing, Nevada’s criminal justice system. Additionally, we identify and propose certain solutions to reduce both recidivism and the financial burden that incarceration imposes on the state by looking to best practices in other states, as well as certain mechanisms and provisions that were, for one reason or another, removed from Nevada Assembly Bill 236.

Law School News: Adjunct Professor Of The Year: David Coombs 05-13-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Unqualified Mess Of Qualified Immunity; A Doctrine Worth Overruling, Allison Weiss

Washington and Lee Law Review Online

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts …

Defining Insanity: How An Individual's View Can Impact A Trial, Jayme L. Ayres

Pursuit - The Journal of Undergraduate Research at The University of Tennessee

The insanity plea has always been a controversial topic among anyone. No one sees eye to eye on the matter. This can present a problem within professional fields. When insanity cases are brought into courtrooms, legal and psychology professionals need to be able to agree to some extent. However, these professionals have no true control on how jurors define insanity. Jurors tend to determine guilty or not guilty in insanity cases, based on their own personal views. The current study is a replication of Doctor John Geiger’s 2003 and 2008 study of how legal professionals and undergraduate psychology students view …

Convictions As Guilt, Anna Roberts

Faculty Scholarship

No abstract provided.

The Evolution Of Juvenile Justice From The Book Of Leviticus To Parens Patriae: The Next Step After In Re Gault, Donald E. Mcinnis, Shannon Cullen, Julia Schon

Loyola of Los Angeles Law Review

Since the arrival of the Pilgrims, American jurisprudence has known that its law-breaking children must be treated differently than adults. How children are treated by the law raises ethical and constitutional issues. This Article questions the current approach, which applies adult due process protections to children who are unable to fully understand their constitutional rights and the consequences of waiving those rights. The authors propose new Miranda warnings and a Bill of Rights for Children to protect children and their constitutional right to due process under the law.

Supervised Release Is Not Parole, Jacob Schuman

Loyola of Los Angeles Law Review

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to …

Juvenile Diversion Programs: Comparing Minnesota County Characteristics To Determine Their Role In Pre-Trial Diversion Programs, Kaydin Schmitt

Political Science Theses and Capstones

The main goal of the juvenile justice system is to rehabilitate offenders and prevent youth from entering the adult justice system. One approach is through the use of diversion programs. The state of Minnesota requires all counties to offer at least one type of pre-trial diversion program. However, there is no ubiquitous program; the number and types of programs differ between counties, and the reason for these differences between jurisdictions is under-researched. I analyze the number and types of pre-trial diversion programs in Minnesota counties and compare them to various county characteristics to determine which characteristics play a role in …

"The Angels That Surrounded My Cradle": The History, Evolution, And Application Of The Insanity Defense, Eugene M. Fahey, Laura Groschadl, Brianna Weaver

Buffalo Law Review

No abstract provided.

Retroactive Justice: Toward Fundamental Fairness In Resentencing Crack Cocaine Offenders Under Section 404 Of The First Step Act, Daniel P. Peyton

University of Richmond Law Review

In analyzing these four methods, this Comment argues that Method IV best serves fundamental fairness in sentencing, in congruence with the purpose of the First Step Act. To resolve its arbitrary implementation, section 404 must be amended to require a full plenary resentencing in accordance with all updated sentencing guidelines and caselaw in effect at the time of the resentencing. This was the approach taken by the court in resentencing Mr. Rhines to time served. While the Supreme Court could rule Method IV is the correct interpretation of the statute, Congress is the more appropriate actor and should capitalize on …