Criminal Law Commons^™

Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby

Journal of Criminal Law and Criminology

Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.

There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration …

Regional International Juvenile Incarceration Models As A Blueprint For Rehabilitative Reform Of Juvenile Criminal Justice Systems In The United States, Robert Laird

Journal of Criminal Law and Criminology

Adolescence marks a unique and transformative time in a person’s physical, emotional, and intellectual development and requires special considerations in the realm of criminal justice. This Comment explores how rehabilitative models of criminal justice are better suited than punitive models to recognize and accommodate the intricacies and special factors inherent in juvenile delinquency and uses examples from regional international bodies to illustrate how the United States can adopt measures that align with modern-day neurology and psychiatry. First, this Comment explores the unique characteristics of juvenile offenders as adolescent, semi-autonomous individuals who are more likely to be incompetent to stand trial …

Capital Felony Merger, William M. Berry Iii

Journal of Criminal Law and Criminology

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” …

"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

Journal of Criminal Law and Criminology

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …

Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring

Journal of Criminal Law and Criminology

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several …

Rethinking Reverse Location Search Warrants, Mohit Rathi

Journal of Criminal Law and Criminology

The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of …

Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder

Journal of Criminal Law and Criminology

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …

Crisis And Coercive Pleas, Thea Johnson

JCLC Online

No abstract provided.

Sick Deal: Injustice And Plea Bargaining During Covid-19, Ryan T. Cannon

JCLC Online

No abstract provided.

The Opportunity In Crisis: How 2020'S Challenges Present New Opportunities For Prosecutors, Chesa Boudin

JCLC Online

No abstract provided.

Covid In Menard, Deandre Banks

JCLC Online

No abstract provided.

Pandemic Thoughts While On Lock, Kevin Dugar

JCLC Online

No abstract provided.

Following Data: The "Defund The Police" Movement's Implications For Elementary And Secondary Schools, Michael Heise, Jason P. Nance

JCLC Online

Nationwide calls to “Defund the Police,” largely attributable to Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” school resource officer (“SRO/police”) programs. To be sure, school districts’ SRO/police programs endure as a subject of persistent scholarly and public scrutiny, particularly relating to how a school’s SRO/police presence influences the school’s student discipline reporting policies and practices. How schools report student discipline and whether the process involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The “school-to-prison pipeline” research literature features two general empirical claims. One is …

Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger

Northwestern University Law Review

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states, Massachusetts and …

Foreword, David M. Shapiro, Emily Mccormick, Annie Prossnitz

Northwestern University Law Review

No abstract provided.

Punishment In Prison: Constituting The "Normal" And The "Atypical" In Solitary And Other Forms Of Confinement, Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola, Meredith Wheeler

Northwestern University Law Review

What aspects of human liberty does incarceration impinge? A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s. Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long- term isolation and to higher security levels.

Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, …

A Wrong Without A Right? Overcoming The Prison Litigation Reform Act's Physical Injury Requirement In Solitary Confinement Cases, Maggie Filler, Daniel Greenfield

Northwestern University Law Review

This Essay argues against applying the so-called “physical injury” requirement of the Prison Litigation Reform Act (PLRA) to deny monetary compensation to solitary confinement survivors. The Essay identifies three ways in which misapplication of the PLRA’s physical injury requirement limits the ability of solitary confinement survivors to receive monetary compensation for psychological harm suffered. First, some courts applying the PLRA wrongly dismiss damages claims for alleging “de minimis” physical injury. Second, some courts have been reluctant to find that physical injury caused by psychological trauma satisfies the PLRA’s physical injury requirement. Third, courts do not distinguish between “garden …

Is Solitary Confinement A Punishment?, John F. Stinneford

Northwestern University Law Review

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this …

Mass Solitary And Mass Incarceration: Explaining The Dramatic Rise In Prolonged Solitary In America's Prisons, Jules Lobel

Northwestern University Law Review

In the last two decades of the twentieth century, prisons throughout the United States witnessed a dramatic rise in the use of solitary confinement, and the practice continues to be widespread. From the latter part of the nineteenth century until the 1970s and ’80s, prolonged solitary confinement in the United States had fallen into disuse, as numerous observers and the United States Supreme Court recognized that the practice caused profound mental harm to prisoners. The reasons for this dramatic rise in the nationwide use of solitary confinement and the development of new supermax prisons have not been explored in depth. …

The Science Of Solitary: Expanding The Harmfulness Narrative, Craig Haney

Northwestern University Law Review

The harmful effects of solitary confinement have been established in a variety of direct observations and empirical studies that date back to the nineteenth century, conducted in many different countries by researchers with diverse disciplinary backgrounds. This Essay argues that these effects should be situated and understood in the context of a much larger scientific literature that documents the adverse and sometimes life- threatening psychological and physical consequences of social isolation, social exclusion, loneliness, and the deprivation of caring human touch as they occur in free society. These dangerous conditions are the hallmarks of solitary confinement. Yet they are imposed …

Consensus Statement From The Santa Cruz Summit On Solitary Confinement And Health

Northwestern University Law Review

No abstract provided.

How Do We Reach A National Tipping Point In The Campaign To Stop Solitary?, Amy Fettig

Northwestern University Law Review

The use and abuse of solitary confinement in American prisons, jails, and juvenile detention centers is at epidemic levels. On any given day 80,000 to 100,000 people in prisons are subjected to a practice considered inhumane and degrading treatment—even torture under international human rights standards. Despite widespread international condemnation, decades of research demonstrating the harm it inflicts on human beings, and a growing chorus from the medical community raising alarms about its impact on the brain, solitary confinement remains a routine prison-management strategy in correctional institutions nationwide. In the past decade, however, a growing movement has emerged to challenge the …

Learning Facts From Fiction In Jay-Z'S 99 Problems, Karl T. Muth

JCLC Online

No abstract provided.

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Prosecutor As A Final Safeguard Against False Convictions: How Prosecutors Assist With Exoneration, Elizabeth Webster

Journal of Criminal Law and Criminology

Prosecutors have helped secure an unprecedented number of recent exonerations. This development, combined with the rapid emergence of district attorney-initiated conviction integrity units (CIUs) raises several questions. How do prosecutors’ offices review postconviction innocence claims? How do they make decisions about the merits of those claims? How do CIU processes differ from non-CIU processes? This study examines the circumstances surrounding prosecutor-assisted exoneration cases through semi-structured interviews with 20 prosecutors and 19 defense attorneys. It draws from a sample of both CIU and non-CIU prosecutors, thereby enabling comparisons. Respondents were asked about their experiences and decision-making structures in specific, post-2005 exoneration …

Federal Detention And “Wild Facts” During The Covid-19 Pandemic, Gabriel A. Fuentes

Journal of Criminal Law and Criminology

No abstract provided.

Juvenile Life Without Parole In North Carolina, Ben Finholt, Brandon L. Garrett, Karima Modjadidi, Kristen M. Renberg

Journal of Criminal Law and Criminology

Life without parole (LWOP) is “an especially harsh punishment for a juvenile,” as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole (JLWOP) sentences. Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, such sentencing has declined. This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to …