Criminal Law Commons^™

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Not Affirmative Consent, Aya Gruber

University of the Pacific Law Review

No abstract provided.

Should Rape Shield Laws Bar Proof That The Alleged Victim Has Made Similar, False Rape Accusations In The Past?: Fair Symmetry With The Rape Sword Laws, Edward J. Imwinkelried

University of the Pacific Law Review

No abstract provided.

Barriers To Affirmative Consent Policies And The Need For Affirmative Sexuality, Kristen N. Jozkowski

University of the Pacific Law Review

No abstract provided.

More Horse-Hair For The Sword Of Damocles? The Rhode Island Probation System And Comparisons To Federal Law, Timothy Baldwin, Olin Thompson

Roger Williams University Law Review

No abstract provided.

No Exit, No End: Probation In Rhode Island, Lara Montecalvo, Kara Maguire, Angela Yingling

Roger Williams University Law Review

No abstract provided.

One Year Later: Reflections From The Mass Incarceration Symposium Student Steering Committee, Meghan Kruger, Danielle Dufault

Roger Williams University Law Review

No abstract provided.

The Dramas Of Criminal Law: Thurman Arnold’S Post-Realist Critique Of Law Enforcement, Mark Fenster

UF Law Faculty Publications

The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and …

Public Wrongs And Public Reason, Chad Flanders

All Faculty Scholarship

The distinction between crimes that involve wrongs in themselves and crimes that are wrong because the law makes them so has long puzzled theorists. This essay argues that the distinction, while getting at something real, is based on a mistake. That mistake is made both by those who see moral wrongness as a necessary condition for criminality and by those who believe merely making something illegal is sufficient to make it criminal. Neither is correct. Rather, what makes something a criminal wrong is that it involves a violation of a law that has been justified in terms of “public reason.”

Procedural Justice And Policing: Four New Directions, Rebecca Hollander-Blumoff

Washington University Journal of Law & Policy

This Article, by Professor Rebecca Hollander-Blumoff from Washington University School of Law in St. Louis, analyzes the concept of procedural justice within the frame of contemporary policing. Using the shooting of Michael Brown as a catalyst, Hollander-Blumoff advocates for four potential areas of future development in procedural justice: (1) the interaction between the research on self-control and procedural justice; (2) research on the tools most effective in creating positive perceptions of fairness by police; (3) the implications of treating procedural justice not as a dynamic interchange; and (4) the role of reactive devaluation as it might affect reaction to procedural …

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Ignorance Of The Law Is No Excuse—Unless You’Re A Cop, Hannah Dunn

Loyola of Los Angeles Law Review

No abstract provided.

He Jiahong, Back From The Dead: Wrongful Convictions And Criminal Justice In China, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

1In 1987, Teng Xingshan was sentenced to death for raping a woman and dismembering her body; wrongfully convicted, he was executed in 1989 – but in 1992 the “victim” returned home, and Teng was exonerated in 2005. His case is only one among numerous other tragic wrongful convictions discussed in Back From the Dead: Wrongful Convictions and Criminal Justice in China, by Professor He Jiahong (Renmin University Law School, Beijing). This book, the product of ten years of research, is a scholarly analysis of wrongful convictions that demonstrates deep system-wide flaws in China’s criminal justice system.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

The Criminalization Of Title Ix, Erin R. Collins

Law Faculty Publications

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses …

Charging On The Margin, Paul T. Crane

Law Faculty Publications

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses- penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on …

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Criminal Law: Your Body Is Not Your Temple—State V. Bernard, Adrian S. Lafavor-Montez

Mitchell Hamline Law Review

No abstract provided.

Understanding Offenders With Serious Mental Illness In The Criminal Justice System, Jillian Peterson, Kevin Heinz

Mitchell Hamline Law Review

No abstract provided.

Improving Insanity Aftercare, Amanda Joy Peters, Indira Azizi Lex

Mitchell Hamline Law Review

No abstract provided.

A Prisoner's Dilemma: The Eighth Circuit's Application Of Heck V. Humphrey To Released Prisoners, Tyler Eubank

Mitchell Hamline Law Review

No abstract provided.

Enabling The Disabled: A Proposed Framework To Reduce Discrimination Against Forensic Disability Clients Requiring Access To Programs In Prison, Astrid Birgden

Mitchell Hamline Law Review

No abstract provided.

A Prosecutor's Comment On Mental Health Court——Realizing The Goal Of Long-Term Public Safety, Karen A. Kugler

Mitchell Hamline Law Review

No abstract provided.

Hennepin County Criminal Mental Health Court: Experiences In A Large Metropolitan Mental Health Court, Kerry Meyer

Mitchell Hamline Law Review

No abstract provided.

The Role Of States In Shaping The Legal Debate On Medical Marijuana, Florence Shu-Acquaye

Mitchell Hamline Law Review

No abstract provided.

Challenges To Fingerprint Identification Evidence: Why The Courts Need A New Approach To Finality, Sarah Lucy Cooper

Mitchell Hamline Law Review

No abstract provided.

Model Or Anti-Model? U.S. Regulatory Takings Doctrine In Foreign Jurisdictions, Melanie Benesh

Cardozo Journal of International and Comparative Law

Canada and Australia have taken a different approach to regulatory takings than Peru, despite some similarities among the countries. Like Peru, Canada and Australia both have IIAs with the United States. Like Peru, both have also addressed regulatory takings issues in their domestic jurisprudence since signing those IIAs. And like Peru, both Canada and Australia have looked to U.S. regulatory takings doctrine while developing their own domestic jurisprudence. However, unlike Peru, Canada and Australia have both ultimately decided that the U.S. regulatory takings doctrine would not be viable in their constitutional and political systems. They view U.S. regulatory takings doctrine …

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

Scholarly Works

In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …