Criminal Law Commons^™

Training Curriculum: Responding To Sexual Abuse Of Youth In Custody: Addressing The Needs Of Boys, Girls, And Gender Nonconforming Youth - Notification Of Curriculum Use (Facilitator’S Guide), Brenda V. Smith, Jaime M. Yarussi, Rebecca Heinsen, Melissa C. Loomis, Caleb J. Bess, Tonya Davis, Lisa Capers, Kevin Dubose, Takiya Wheeler, Dr. Robert Bidwell

Research Reports & White Papers

The enclosed Responding to Sexual Abuse of Youth in Custody: Addressing the Needs of Boys, Girls, and Gender Nonconforming Youth curriculum was developed by the Project on Addressing Prison Rape at American University, Washington College of Law as part of contract deliverables for the National PREA Resource Center (PRC), a cooperative agreement between the National Council on Crime and Delinquency (NCCD) and the Bureau of Justice Assistance (BJA). The Prison Rape Elimination Act (PREA) standards served as the basis for the curriculum’s content and development with the goal of the Responding to Sexual Abuse of Youth in Custody: Addressing the …

Contempt, Status, And The Criminalization Of Non-Conforming Girls, Cynthia Godsoe

Cardozo Law Review

No abstract provided.

Bridging The Cellular Divide: A Search For Consensus Regarding Law Enforcement Access To Historical Cell Data, Zachary Ross

Cardozo Law Review

No abstract provided.

The Unexonerated: Factually Innocent Defendants Who Plead Guilty, John H. Blume, Rebecca K. Helm

Cornell Law Faculty Working Papers

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly, in many of the cases, the defendant’s innocence is known, or at least highly suspected, at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in three sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their …

Should Minnesota Recognize A State Constitutional Right To A Criminal Appeal?, Stan Keillor

Hamline Law Review

abstract

Special Administrative Measures: An Example Of Counterterror Excesses And Their Roots In U.S. Criminal Justice, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th-century criminal justice trends to the 21st-century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

A Primer On The Use Of Dangerous Trial Exhibits, Robert M. Jarvis

Faculty Scholarship

It sometimes is necessary at trial to introduce a dangerous exhibit-such as a bomb, gun, or knife-to bolster a client's story, discredit an opposing witness, or give the jury a clearer picture of the underlying events. Doing so, however, requires care and planning. Not only do many courts have specific rules regarding how such exhibits are to be noticed, handled, and displayed, but there are also numerous practical and tactical considerations that must be weighed. In this Article, the author presents the first comprehensive discussion regarding dangerous trial exhibits and offers suggestions for their successful use.

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

Anti-Justice, Melanie D. Wilson

Scholarly Articles

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has, however, failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Faculty Articles and Other Publications

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

Masculinity & Title Ix: Bullying And Sexual Harassment Of Boys In The American Liberal State, Nancy Chi Cantalupo

Law Faculty Research Publications

No abstract provided.

Substance And Procedure In The Reform Of Criminal Sentencing, Franklin E. Zimring

McGeorge Law Review

No abstract provided.

Reforming California Sentencing Practice And Policy: Are We There Yet?, Michael Vitiello

McGeorge Law Review

No abstract provided.

Does Prison Reform Bring Sentencing Reform? The Congress, The Courts, And The Structural Injunction, Brian K. Landsberg

McGeorge Law Review

No abstract provided.

The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Cold Comfort Food: A Systematic Examination Of The Rituals And Rights Of The Last Meal, Sarah Gerwig-Moore

Articles

Last meals are a resilient ritual accompanying executions in the United States. Yet states vary considerably in the ways they administer last meals. This paper explores the recent decision in Texas to abolish the tradition altogether. It seeks to understand, through consultation of historical and contemporary sources, what the ritual signifies. We then go on to analyze execution procedures in all 35 of the states that allowed executions in 2010, and show that last meal allowances are paradoxically at their most expansive in states traditionally associated with high rates of capital punishment (Texas now being the exception to that rule.) …

The Trayvon Martin Trial - Two Comments And An Observation, 47 J. Marshall L. Rev. 1371 (2014), Richard Delgado

UIC Law Review

No abstract provided.

Stop Presumptive Transfers: How Forcing Juveniles To Prove They Should Remain In The Juvenile Justice System Is Inconsistent With Roper V. Simmons & Graham V. Florida, 48 J. Marshall L. Rev. 365 (2014), Rachel Fugett

UIC Law Review

Overly expansive juvenile transfer laws are inconsistent with the Court’s reasoning because their primary objective is to transfer juveniles into the adult criminal justice system solely for the purpose of punishing and sentencing them like adults. In so doing, expansive juvenile transfer laws, more often than not, largely ignore a juvenile’s diminished culpability and greater capacity for change.

The Jury Wants To Take The Podium -- But Even With The Authority To Do So, Can It? An Interdisciplinary Examination Of Jurors' Questioning Of Witnesses At Trial, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Testimonial Is As Testimonial Does, Ben L. Trachtenberg

Faculty Publications

In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold …

The Marriage Of State Law And Individual Rights And A New Limit On The Federal Death Penalty, Jonathan Ross

Cleveland State Law Review

Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. Critics of this practice have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's abolition of capital punishment. Courts, however, have almost unanimously rejected arguments that state law should be a shield from federal punishment for federal offenses. This article proposes a novel way to challenge the federal death penalty's use in a non-death penalty state—the Supreme Court's reasoning in United States v. Windsor. In Windsor, …

Threats And Bullying By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and …

Analysis Of The Efficacy Of Criminal Court Mediation As A Tool Of Restorative Justice, Teresa Hoerres

Capstone Collection

This capstone research paper aims to capture the personal narratives of how participants of criminal court mediation in Brooklyn, New York actual experience the program. The program, which is facilitated by New York Peace Institute, is a cornerstone of the organization’s restorative justice program. Restorative justice has been gaining traction over the last few decades, and its application to criminal matters as an alternative dispute resolution (ADR) service, is unprecedented.

The research was conducted using a mixed methodology approach, relying on the researcher’s ethnographic observations of the criminal court mediation program from August 2013 through March 2014, as well as …

Last Words: A Survey And Analysis Of Federal Judges' Views On Allocution In Sentencing, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Allocution-the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing-is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions-and many others-are answered directly in this first-ever study of judges' views and practices regarding allocution. The authors surveyed all federal …

Preempting The Police, David Jaros

All Faculty Scholarship

Fighting crime requires that we vest police with extensive discretion so that they can protect the public. Unfortunately, the nature of police work makes it difficult to ensure that law enforcement authority is not abused. This challenge is exacerbated by the fact that a great deal of questionable police activity exists in the legal shadows — unregulated practices that do not violate defined legal limits because they have generally eluded both judicial and legislative scrutiny. Local law enforcement strategies, like the maintenance of unauthorized police DNA databases and the routine practice of initiating casual street encounters, threaten fundamental notions of …

Missing Mcveigh, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …