Criminal Law Commons^™

To Be Judged By Twelve Or Carried By Six? Quasi-Involuntariness And The Criminal Prosecution Of Service Members For The Use Of Force In Combat - A Grunt's Perspective, Lupe Laguna

Journal of Criminal Law and Criminology

Post-9/11 conflicts have altered the way that the United States of America and her allies fight wars. Over the last ten years military commanders have embraced counterinsurgency doctrine as the path to victory in the War on Terror. As they have done so, commanders have been faced with the difficult task of balancing the need to protect local civilian populations with the need to proactively target insurgent fighters. To accomplish this mission, the military has adopted rules of engagement that allow a service member to engage a target when he or she perceives that the target exhibits “hostile intent.” The …

The Psychology Of Workplace Deviant & Criminal Behavior, William Brice, Deborah E. Rupp

Journal of Criminal Law and Criminology

The 2013 book Deviant and Criminal Behavior in the Workplace addresses the psychological constructs, situations, and environments underlying active counterproductive workplace behaviors. Building on a diverse range of psychological findings, this book highlights that the field of criminology needs to expand outside of the realm of violence and instead look at how deviant workplace behaviors can tie into—and motivate—other types of crime.

Lawful Or Fair? How Cops And Laypeople Perceive Good Policing, Tracey L. Meares, Tom R. Tyler, Jacob Gardener

Journal of Criminal Law and Criminology

Legal authorities and the public live in two separate worlds. One world is suffused with law, and the other world is suffused with people’s lived experiences that support their evaluations of fairness. When legal authorities consider whether police policies and practices are desirable, a framework regarding the lawfulness of the relevant policies and practices dominates the conversation. Police departments, their policies, and police officers’ actions are viewed as right or wrong with reference to constitutional standards, as interpreted by prosecutors, judges, and other legal actors. In contrast, we argue that the public is generally insensitive to the question of whether …

Estimating The Prevalence Of Entrapment In Post-9/11 Terrorism Cases, Jesse J. Norris, Hanna Grol-Prokopczyk

Journal of Criminal Law and Criminology

How many of the terrorism convictions since September 11, 2001 have been the product of entrapment? Some scholars and journalists have suggested that the number is quite high. One report went so far as to claim that only 1% of terrorism prosecutions involve “real” terrorism. The government’s defenders, at the opposite extreme, come close to saying that entrapment in a terrorism case is a contradiction in terms.

Little empirical basis exists for evaluating these competing claims. Existing literature on terrorism and entrapment is typically based on detailed discussions of a few egregious cases, rather than systematic analysis of the phenomenon. …

Symposium On The Center On Wrongful Convictions: Foreward, Karen L. Daniel

Journal of Criminal Law and Criminology

No abstract provided.

An Ideological Odyssey: Evolution Of A Reformer, Rob Warden

Journal of Criminal Law and Criminology

No abstract provided.

Remembering Disputed Sexual Encounters: A New Frontier For Witness Memory Research, Deborah Davis, Elizabeth F. Loftus

Journal of Criminal Law and Criminology

This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists.

The Unindicted Co-Ejaculator And Necrophilia: Addressing Prosecutors' Logic-Defying Responses To Exculpatory Dna Results, Jacqueline Mcmurtrie

Journal of Criminal Law and Criminology

This article addresses a prosecutor’s development of new and bizarre theories, particularly in cases involving confession evidence, to explain away exculpatory DNA results. In Juan Rivera’s case, the prosecutor’s theory for why sperm found inside the 11-year-old victim on the day she was murdered did not belong to Rivera was that she had sex with someone before Rivera came along and raped (but did not ejaculate) and murdered her. The unnamed-lover theory is used so often by prosecutors that it has a moniker: “the unindicted co-ejaculator.” In the case of the Dixmoor Five, teenagers convicted of the rape and murder …

The Chronic Failure To Discipline Prosecutors For Misconduct: Proposals For Reform, Thomas P. Sullivan, Maurice Possley

Journal of Criminal Law and Criminology

While most prosecutors adhere to the maxim that their primary task is to obtain just results, there are some who violate their ethical responsibilities in order to rack up convictions. This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with …

Who Could It Be Now? Challenging The Reliability Of First Time In-Court Identifications After State V. Henderson And State V. Lawson, Aliza B. Kaplan, Janis C. Puracal

Journal of Criminal Law and Criminology

Despite the recent advances in assessing the reliability of eyewitness identifications, the focus to date has largely been identifications made pretrial. Little has been written about identifications made for the first time in the courtroom. While in-court identifications have an extraordinarily powerful effect on juries, all such identifications are potentially vulnerable to post-event memory distortion and decay. Absent an identification procedure that effectively tests the witness’s memory, it is impossible to know if the witness’s identification of the defendant is a product of his or her original memory or a product of the extraordinarily suggestive circumstances created by the in-court …

Prohibition, Stare Decisis, And The Lagging Ability Of Science To Influence Criminal Procedure, Wesley M. Oliver

Journal of Criminal Law and Criminology

Science has revealed that, contrary to longstanding intuitions, eyewitnesses are sometimes mistaken and false confessions do occur. The methods police use to obtain identifications and confessions can affect their reliability. Yet criminal procedure does not deter investigatory methods that produce unreliable evidence as thoroughly as it does those methods that produce reliable evidence. If an officer conducts an illegal search of a car trunk, the evidence is excluded and subsequently officers know that they must follow the rules if they hope to admit the fruits of such searches. If, however, an officer creates a suggestive lineup—which risks a false conviction—the …

Prosecutors And Victims: Why Wrongful Convictions Matter, Jeanne Bishop, Mark Osler

Journal of Criminal Law and Criminology

Often, discussions of wrongful convictions focus almost entirely on the wrongfully convicted and ignore two important constituencies: prosecutors and crime victims. Both constituencies have unique connections to wrongful convictions and should be recognized as potentially powerful allies for change. Prosecutors are deeply committed to justice and to the outcomes of their cases; they can help identify and correct wrongful convictions and introduce policies to avoid wrongful convictions in the first place. Wrongful convictions matter to crime victims because convicting the wrong person leaves the real perpetrator free to commit more crimes, creates a new, innocent victim, and drains resources that …

Prison Abolition And Grounded Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address—interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law—principally deterrence, incapacitation, rehabilitation, and …

Discretionary Death Penalty For Convicted Drug Couriers In Singapore: Reflections On High Jurisprudence Thus Far, Siyuan Chen

Research Collection Yong Pung How School Of Law

For decades, drug trafficking was a serious offence in Singapore potentially punishable by mandatory death. In 2012, Singapore’s Misuse of Drugs Act (MDA) was amended to give the courts sentencing discretion if the accused can first prove that he was merely a courier, and to better reflect the moral culpability accorded as between mules and kingpins in the hierarchy of drug syndicates. However, there are some complications in proving this. Not only must the accused show that he was merely a courier, he must also show that he had substantively assisted the authorities in disrupting drugtrafficking activities in Singapore. This …

Gender Based Violence As A Continuum Of Human Rights Violations In Russia And The Czech Republic, Alena Lebron

Dissertations and Theses

Gender-based violence can take various forms – physical, sexual, psychological, and economic. Violence against women is a global public health problem and not only violates human rights, but also hampers productivity, reduces human capital, and undermines economic growth. Since the collapse of the Soviet Union in 1991, human trafficking for sexual exploitation and domestic violence have become a significant problem in post-communist countries. The fall of the Soviet Union also shaped national gender policies in post-communist countries. Despite the common challenges they face, success in implementing anti-trafficking procedures and measures against domestic violence varies from country to country.

According to …

A Philosophical Analysis Of California Determinate Sentencing, Three Strikes, And Realignment, Madeline Stein

CMC Senior Theses

This thesis explores the relationship between philosophy and policy in the context of three California policies, Determinate Sentencing, Three Strikes, and Realignment. The philosophy portion includes theories of retribution, deterrence, and rehabilitation, focusing on the tensions and conflicts within them.

Regulating Sex Work: Assimilationism, Erotic Exceptionalism And The Challenge Of Intimate Labor, Adrienne D. Davis

Scholarship@WashULaw

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

Ethics In Criminal Advocacy, Peter A. Joy, Ellen Yaroshefsky

Scholarship@WashULaw

Several ethics issues in criminal advocacy came to the forefront again in 2014. Although the U.S. Supreme Court did not decide important cases that cut across criminal law and the ethical obligations of defense counsel or prosecutors in 2014, there were still several other important developments and stories in the news. For example, decisions of prosecutors in Missouri and New York that they did not have a conflict of interest in considering charges against police officers in the deaths of Michael Brown and Eric Garner, both unarmed African America men, led to outcries of injustice and double-standards favoring police. In …

Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald

Faculty Scholarship

In the last decade, a number of states have expanded the jurisdiction of their juvenile courts by increasing the maximum age to 18. Proponents argue that these expansions reduce crime by increasing access to the beneficial features of the juvenile justice system. Critics counter that the expansions risk increasing crime by reducing deterrence. In 2010, Illinois raised the maximum age for juvenile court for offenders who commit a misdemeanor. By examining the effect of this law on juvenile offenders in Chicago, this paper provides the first empirical estimates of the consequences of recent legislative activity to raise the age of …

Race Matters In Jury Selection, Peter A. Joy

Scholarship@WashULaw

Whatever the lawyer fears, whether it is an issue of race in the case or unconscious biases in jurors that may affect how they decide the case, the lawyer must address the fears during jury selection. If the lawyer does not explore what the lawyer fears about the case during jury selection, the lawyer has failed to increase the odds that the jury will consider the client’s case fairly. If the defense lawyer does not mention race during jury selection when race matters in a case, racial bias can be a corrosive factor eating away at any chance of fairness …

Unequal Assistance Of Counsel, Peter A. Joy

Scholarship@WashULaw

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by …

"If You Is White, You's Alright....": Stories About Colorism In America, Kimberly Jade Norwood

Scholarship@WashULaw

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

In 2014, many states revisited disproportionately high sentencing schemes for low-level property offenses. Voters in states across the country rallied in favor of reductions in penalties for low-level, nonviolent property offenses, such as theft, check fraud, and larceny. Bipartisan efforts to ease the financial burden of incarceration have lead to criminal justice reforms in states like California, Oregon, and Mississippi. Advocates for women in the criminal justice system have embarked on campaigns to frame reforms as not just a cost-cutting measure, but also as a moral imperative.

For many women, primarily women with little money, relatively low-value property offense convictions …

Sexual Assaults Among University Students: Prevention, Support, And Justice, Rebecca B. Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Sexual assault is common among college-aged women (18 to 25 years), with 1 in 5 reporting having experienced these crimes during their college years. Acute and long-term consequences of sexual assault may include physical trauma, sexually transmitted infections, posttraumatic stress disorder, depression, and substance abuse. Survivors have the option of reporting assaults to the university or to the police, but the goals of these 2 systems—and women’s experiences with them—can be quite different. The criminal justice system’s principal aim is to adjudicate guilt, but the university has the broader purpose of fostering a safe learning environment.

This article explores how …

Gatsby And Tort, Robin West

Georgetown Law Faculty Publications and Other Works

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of …

The Diary Of An Ex-Con, Erica Edwards

Capstones

Evelyn Litwok talks about abuse that incarcerated people experience in prison and the punishment inmates face when they attempt to address it with administration.

Discovering A Gold Mine Of U.S. Government Information: Exploring The Hathitrust Catalog And Its Rich Veins, Bert Chapman

Libraries Faculty and Staff Presentations

The Hathitrust Catalog provides researchers at member institutions with exponentially expanded access to historical U.S. Government information resources. This presentation describes how researchers can use this resource to conduct substantive research using government information resources on public policy issues such as Internal Revenue Service program problems, infectious diseases such as Ebola, and U.S. foreign relations with the former Soviet Union/Russian Federation.

Psychological Mechanisms Underlying Support For Juvenile Sex Offender Registry Laws: Prototypes, Moral Outrage, And Perceived Threat, Margaret C. Stevenson, Cynthia J. Najdowski, Jessica M. Salerno, Tisha R.A. Wiley, Bette L. Bottoms, Katlyn S. Farum

Psychology Faculty Scholarship

We investigated whether and how a juvenile’s history of experiencing sexual abuse affects public perceptions of juvenile sex offenders in a series of 5 studies. When asked about juvenile sex offenders in an abstract manner (Studies 1 and 2), the more participants (community members and undergraduates) believed that a history of being sexually abused as a child causes later sexually abusive behavior, the less likely they were to support sex offender registration for juveniles. Yet when participants considered specific sexual offenses, a juvenile’s history of sexual abuse was not considered to be a mitigating factor. This was true when participants …

Establishing A Suitable Lay Participation System For The Taiwanese Criminal Justice System, Yi-Lin Lou

Maurer Theses and Dissertations

This research focuses on a recent judicial reform measure proposed by the Taiwanese Judicial Yuan in 2011. The measure’s objective was to improve the criminal justice system via the implementation of a so-called “lay observer system.” The dissertation begins with an analysis regarding whether the Taiwanese criminal justice system needs to reform, and it considers whether the introduction of the proposed lay observer system would be a reasonable means of achieving the Judicial Yuan’s goals and meeting its expectations, which include rebuilding the Taiwanese society’s trust in the professional judges’ credibility and the court’s fairness. The second part of this …