Criminal Law Commons^™

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

Is Your Smartphone Conversation Private? The Stingray Device’S Impact On Privacy In States, Katherine M. Sullivan

Catholic University Law Review

“Where are you” is a common question to receive on your cellphone, but it is up to you whether or not to respond with an answer. No longer does this question need to be asked due to advancements in surveillance technology. When pinpointing a criminal suspect, the question can be answered by local and state agencies, without the person of interest knowing, by using a StingRay device. The main question to be asked is does the conduct of locating a criminal suspect’s exact location without a warrant, violate an individual’s Fourth Amendment Constitutional right to be free from unreasonable searches. …

What U.S Defense Attorneys Know About Facial Composites, Marisa H. Jaross

Student Theses

The Innocence Project’s DNA exoneration database (2018) indicates that approximately 27% of wrongful conviction cases containing eyewitness evidence also included a composite or sketch[1] of the perpetrator. This statistic is alarming, given that composites are rarely used in criminal investigations (PERF, 2013), but not surprising considering “good” composites are notoriously difficult to construct (e.g., Wells, Charman, & Olson, 2005). It is well understood that eyewitness evidence can be particularly persuasive evidence of guilt for juries and thus we were interested in learning more about how defense attorneys prepare for trial with respect to this specific type of eyewitness evidence. …

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.

Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson

Catholic University Law Review

The Supreme Court decided Brady v. Maryland in an effort to ensure fair trials and fair outcomes. The Brady decision requires prosecutors to disclose exculpatory evidence regarding guilt of the defendant. The Brady rule is meant to ensure innocent defendants are not convicted for crimes they did not commit. This rule should have unanimous support from both prosecution and defense teams, and yet Brady violations continue to occur within prosecutor offices around the country.

No offender highlights the short comings of the current system more so than the United States Attorney’s Office. Since the Brady decision, the USAO has repeated …

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

William & Mary Law Review

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

The Federal Criminal Forfeiture Statute: Reining In The Government’S Previously Unbridled Ability To Seize Pretrial Assets, Kristyn Fleming Francese

Pace Law Review

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that …

Safety From Plea-Bargains’ Hazards, Boaz Sangero

Pace Law Review

There is a significant risk—in safety terms, a hazard—that the wide gap between the defendant’s anticipated punishment if convicted at trial and the relatively lighter punishment if he confesses in a plea-bargain will lead not only the guilty but also the innocent to confessing. In practice, only 3% of all federal cases go to trial, and only 6% of state cases. In the remainder, conviction is obtained through plea-bargaining. Indeed, plea-bargains are one of the central mechanisms facilitating false convictions.

In other fields, the meaning of a “safety-critical system” is well understood, and resources are, therefore, invested in modern safety …

American Hypocrisy: How The United States' System Of Mass Incarceration And Police Brutality Fail To Comply With Its Obligations Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, R. Danielle Burnette

Georgia Journal of International & Comparative Law

No abstract provided.

Comment: Containerization Of Contraband: Battling Drug Smuggling At The Fourth Busiest Container Handling Facility In The United States, Adam Smith

Georgia Journal of International & Comparative Law

No abstract provided.

Rehabilitated Ruins, Abigail Cathryn Gwin

Senior Honors Projects, 2010-2019

Rehabilitated Ruins proposes an alternative to the American Prison System, by offering true-rehabilitation based programs. These programs include: specialized counseling, family visitation, leisure activities, places of learning...

When Should Force Directed Against A Police Officer Be Justified Under The Maine Criminal Code? - Toward A Coherent Theory Of Law Enforcement Under The Code's Justification Provision, F. Todd Lowell

Maine Law Review

In State v. Clisham, the Law Court unanimously found that section 104(1) of the Maine Criminal Code operated to justify the use of non-deadly force by a private citizen seeking to prevent an illegal search of his house by police officers. This Comment will focus on the justification provisions of the Maine Criminal Code as they relate to law enforcement practices and will examine how the Law Court's most recent decision interpreting one of the provisions affects that relationship. This Comment will argue that the policy underlying the justification provisions mandates that the justification defense be denied to persons responding …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

The History Of Misdemeanor Bail, Shima Baughman

Utah Law Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

Lyrics For Lockups: Using Rap Lyrics To Prosecute In America, Briana Carter

Mercer Law Review

Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy." Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs. While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute. More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution. …

Disruptive Innovation In Criminal Defense: Demanding Corporate Criminal Trials, Ellen S. Podgor

Mercer Law Review

Perhaps the least sympathetic party in a corporate criminal matter is a corporate entity that has engaged in criminal conduct. If the corporation is large, subject to third party civil actions, and especially in an industry dependent upon a public perception of ethical behavior, a criminal indictment can destroy the entity, and few in society are likely to be concerned. To ameliorate the collateral consequences of an indictment, corporations are quick to cooperate with the government by signing onto non-prosecution, deferred prosecution, or plea agreements. The government secures a hefty fine and obtains from the entity the names and evidence …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Mercer Law Review

"What can courts, legislators, or criminal defense lawyers themselves do to seriously change criminal defense practice in a manner that significantly benefits criminal defendants and promotes justice?" That question was posed to the participants in an August 2017 SEALS discussion group and Mercer University School of Law's 2017 Symposium on "disruptive innovation in criminal defense." The implied premise of the question is that aspects of criminal defense should be fixed or can be improved-and in radical ways.

The question of disruptive innovation provides an occasion for identifying deficiencies and weaknesses in contemporary criminal defense practice, and because defense lawyers do …

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Mercer Law Review

The concept of "disruptive innovation" is vague. Imagining the idea of lawyer "disruption" might conjure a scene from Al Pacino's aggressive role in the 1979 film And Justice for All 9 or embody the tradition of lawyers courageously representing unpopular clients, sometimes placing their lives at risk in courtrooms and on streets. But the panel, I discovered, was more interested in the concept of disruption as descriptive of radical departures from conventional lawyering and conventional discipline.

Recently, as I walked along the narrow cobblestoned streets of Prague--the same streets that Franz Kafka traversed while he was consumed by thoughts of …

Raising The Bar: Indigent Defense And The Right To A Partisan Lawyer, Steven Zeidman

Mercer Law Review

In Ake v. Oklahoma, the Supreme Court of the United States held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue. Thirty-two years later, in McWilliams v. Dunn, the Court finally addressed whether an expert must be independent of the prosecution. During oral argument, counsel for McWilliams argued that Ake required that the expert must be part of the defense team and on the defendant's side. Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Participatory Defense: Humanizing The Accused And Ceding Control To The Client, Cynthia Godsoe

Mercer Law Review

This contribution to the Mercer University School of Law's 2017 Symposium on Disruptive Innovation in Criminal Defense discusses two interrelated defense strategies: humanizing the accused and contextualizing their actions in a society plagued with racism and poverty, and ceding substantial control of the defense strategy and legwork to the accused, and their family and friends. The first strategy should not be, but is, disruptive; in a just (and sane?) criminal legal system, this would be a regular part of the process. In our current vast system of social control, however, focusing on the people in the system as anything other …

The Politics Of Ethics, Laurie L. Levenson

Mercer Law Review

Prosecutors hate being told what to do. As "ministers of justice," they feel imbued with a moral compass that rarely, if ever, needs tweaking by outsiders. Their mission to protect society and the Constitution provides sufficient guidance. Being told how to be "ethical" is downright insulting for attorneys who already perceive themselves as wearing the white hat. Efforts to create ethical standards to guide a prosecutor's work may be perceived as little more than an unnecessary intrusion upon the prosecutor's independence and personal sense of justice. For some prosecutors, it is unwarranted meddling into the prosecution's business. As former Attorney …

Privileging Public Defense Research, Janet Moore, Ellen Yaroshefsky, Andrew L.B. Davies

Mercer Law Review

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect …

Disrupting Victim Exploitation, David A. Singleton

Mercer Law Review

Violent-crime survivors have powerful stories to tell. Prosecutors use these stories to convict the accused and advocate for harsh sentences. Legislators use these narratives to pass punitive sentencing measures locking away the convicted for increasing periods of time.

Though prosecutors and legislators serve the entire community, many present themselves as speaking for victims, particularly those who call themselves "tough on crime." But do the interests of those who advocate for punitive, retributive justice always align with those of crime victims? And when their respective interests diverge, is it exploitative for prosecutors and legislators to suggest that they represent the interests …

Immigration Defense Waivers In Federal Criminal Plea Agreements, Donna Lee Elm, Susan R. Klein, Elissa C. Steglich

Mercer Law Review

Immigration policy is back on the American public's radar screen. The fields of immigration--a civil-law subject-and criminal law-a public-law subject-are quite distinct in both litigation practice and law school curricula. With exceptions along the U.S.--Mexican border, only in a small minority of federal cases do criminal attorneys need to know more than some very basic premises of immigration law. Aside from some very general information necessary for defense attorneys to provide adequate advisements according to Padilla v. Kentucky to their clients before entering guilty pleas and Continued Legal Education (CLE) training regarding what offenses have severe immigration consequences, the body …

The Bend At The End: What Lawyers Can Learn About Disruptions And Innovations In Criminal Defense Practice From Market Analysis, Donald F. Tibbs, Justin Hollinger

Mercer Law Review

In the world of stock market analysis, there is one certainty: the stock market is unpredictable. It acts with a will of its own, and despite experts' attempts at market forecast, no single person or machine can accurately predict the highs and lows of each day. Nonetheless, market experts extol new techniques; develop computer algorithms; and attach interesting monikers, such as Stochastics, MACD, and Bollinger Bands. But, in the end, they all succumb to the same rule: the unpredictability of the market suggests that no trading strategy is 100%, without fail, perfect every single trade.

That said, however, there is …