Criminal Law Commons^™

Rejustifying Retributive Punishment On Utilitarian Grounds In Light Of Neuroscientific Discoveries More Than Philosophical Calisthenics! , Robert B. Mccaleb

Cleveland State Law Review

Each of these unique features [of the Rotten Social Background (RSB) defense] is skeptically received by the classical criminal law mainly because of its fundamentally non-scientific, folk-psychological position on free will. However, discoveries in contemporary neuroscience strongly support each of these features. While chemical, causal, and deterministic brain events indisputably play a central role, RSB is virtually ignored as a frightening intrusion by materialism into the dualist sanctuary of the law. Yet RSB, as an indicator species for the health of the criminal law’s philosophic ecosystem, cannot be discounted out of hand any longer. In fact, the reconciliation of law …

Rituals Upon Celluloid: The Need For Crime And Punishment In Contemporary Film, J C. Oleson

Cleveland State Law Review

Most members of the public lack first-hand experience with the criminal justice system; nevertheless, they believe that they possess phenomenological knowledge about it. In large part, the public’s understandings of crime and punishment are derived from television and film, which provide modern audiences with a vision of institutions that are normally occluded from view. While public rituals of punishment used to take place on the scaffold, equivalent moral narratives about crime and punishment now occur on film because modern punishment is imposed outside of the public gaze. Yet because crime films distort what they depict, the public’s view of crime …

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, …

The Hanging Judge By Michael A. Ponsor––Capital Punishment: Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Cleveland State Law Review

No abstract provided.

"Because Ladies Lie": Eliminating Vestiges Of The Corroboration And Resistance Requirements From Ohio's Sexual Offenses, Patricia J. Falk

Cleveland State Law Review

The Ohio General Assembly has made considerable progress in modernizing the state’s rape laws, eliminating many of the substantive and procedural obstacles to the successful prosecution of criminals. Yet, Ohio’s contemporary sexual offense provisions include vestiges of both the corroboration and resistance requirements. More specifically, the corroboration requirement (1) still applies to the crime of sexual imposition and (2) is used as a grading factor in gross sexual imposition. The resistance requirement (1) has been eliminated from rape and gross sexual imposition, but not sexual battery and sexual imposition, and (2) the wording of the existing resistance-elimination provisions is legally …

Making The Fair Sentencing Act Retroactive: Just Think Of The Savings . . . Clause, Jeff Lazarus

Cleveland State Law Review

This article advocates for the retroactive application of the Fair Sentencing Act. Part II of this Article will detail the history of the federal crack cocaine sentencing laws, from 1986 through the passage of the Fair Sentencing Act. Part III will detail the recent cases dealing with attempts at retroactivity in the lower courts. Part IV outlines the Supreme Court’s holding in United States v. Dorsey, which was a ground-breaking step towards the FSA’s retroactive effect. Part V offers arguments in support of retroactivity. Part VI offers legal challenges in which inmates can seek relief in the courts. In Part …

Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil

Cleveland State Law Review

This Note argues that Ohio’s felony-arrestee DNA statute violates Article I, section 14 of the Ohio Constitution and the Fourth Amendment to the United States Constitution. The initial physical swab and the subsequent database searches of an arrestee’s DNA sample, while the arrestee is in custody or being prosecuted, do not violate the Fourth Amendment. However, the inclusion of an innocent person’s DNA in Ohio’s DNA database, subject to repeated searches over time, violates both the Ohio and federal constitutional protections against unreasonable searches. Broadly written DNA statutes trample people’s civil rights, and more carefully drawn legislation could meet the …

Disparate Protections For American Human Trafficking Victims , Amanda Peters

Cleveland State Law Review

The federal government places victims, for the purpose of receiving protections, into two categories: first, international victims and second, American citizens or permanent residents. If an international trafficking victim qualifies to receive services as a result of having been trafficked, the United States will provide refugeelike protections through the TVPA. These protections include housing, food, cash assistance, job training, counseling, medical care, legal assistance, and other services that are available for a period of several years. Victims who are Americans, on the other hand, must find protection elsewhere. The United States government specifically excludes its own trafficked citizens from receiving …

Shame: A Different Criminal Law Proposal For Bullies, Xiyin Tang

Cleveland State Law Review

Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly publicized prosecution of Dharun Ravi, who was convicted of fifteen counts and faced the possibility of ten years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyber bullying” laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to …

Resolving The Post-Begay Maelstrom Statutory Rape As A Violent Felony Under The Armed Career Criminal Act, Sarena M. Holder

Cleveland State Law Review

The Armed Career Criminal Act ("ACCA"), enacted in 1984, mandates a minimum fifteen-year sentence for defendants who unlawfully possess a firearm and who also have three prior convictions for violent felonies and/or serious drug offenses. Since its inception, the ACCA has presented a weighty problem: what constitutes a "violent" felony? The United States Supreme Court has made an effort to allay the confusion, most recently in its decision in Begay v. United States, requiring that violent felonies be purposefully violent or aggressive. This Note questions the reasoning of circuit courts that have disallowed statutory rape as a violent felony post-Begay, …

The Adam Walsh Child Protection And Safety Act: Legal And Psychological Aspects Of The New Civil Commitment Law For Federal Civil Commitment Law For Federal Sex Offenders , John Fabian

Cleveland State Law Review

The Adam Walsh Act (AWA) became law on July 27, 2006, and is the most expansive and punitive sex offender law ever initiated by the federal government. One aspect of the statute, and the topic of this article, is the civil commitment of federal sex offenders. The AWA civil commitment law has its roots in prior U.S. Supreme Court cases including Kansas v. Hendricks and Kansas v. Crane. While the federal commitment statute is similar to traditional state commitment laws, the AWA does not provide for a finding of "likely" to commit sex offenses. Rather, the statute defines a "sexually …

The Unified Sealed Theory: Updating Ohio's Record-Sealing Statute For The Twenty-First Century, Michael H. Jagunic

Cleveland State Law Review

This Note will argue that Ohio's record sealing statute is still a viable means to achieve this balance, but that it must be supplemented by additional laws in order to remain effective. Part II provides a short history of record sealing and expungement in the United States and explains how Ohio's record sealing statute effectively deals with some common criticisms of record sealing. Part III then briefly examines why sealing and expungement statutes are becoming increasingly ineffective due to the proliferation of electronic criminal records and the rise of the data-mining industry. Part IV critiques some of the proposed solutions …

Political Gangsters: The Future Of Racketeering Law In Politics Note, Jillian Henzler

Cleveland State Law Review

Racketeering law and election restrictions are two areas of law that are not typically connected. Previous to the landmark decision in Citizens United, the chances of finding racketeering within election law were probably very slim.The corruption created by this new ruling is a fear that the government has been trying to combat for over a century. Not only will the effects of this new rule increase the appearance of corruption, this corruption may rise to a criminal level if racketeering action actually takes place. The ever-changing and expanding definition of racketeering under the Racketeering Influenced and Corrupt Organizations Act shows …

Have You Been Drinking Tonight Ms. Prynne - Ohio's Scarlet Letter For Ovi/Dui Offenders: A Violation Of First Amendment Protection Against Compelled Speech, William Livingston

Cleveland State Law Review

This note examines the history of scarlet letter punishments. These types of sanctions raise many constitutional concerns; this Note will specifically address First Amendment compelled speech. Different standards of constitutional review for First Amendment violations and probation conditions will also be discussed. The note will also explain how Ohio's special license plate violates the First Amendment. Because the license plate is a legislative requirement that infringes upon free speech and eliminates judicial sentencing discretion, the state's interest must pass strict scrutiny. This analysis will confirm that the state's interest is legitimate but not compelling. The special license plate fails to …

The Rise And Fall Of The Miranda Warnings In Popular Culture, Ronald Steiner, Rebecca Bauer, Rohit Talwar

Cleveland State Law Review

While Dickerson's rationale is certainly correct in presuming that those over thirty have already learned about the Miranda warning from decades of television, younger generations only have today's Miranda-less programming on which to form their assumptions about law enforcement. Miranda can still be found on television, but its presence has severely diminished over the years. If this trend continues, how will America's current youth internalize the Miranda warning in the way older generations have? Near-universal awareness of Miranda is an artifact of a shared popular culture in which the repetition of the warnings was pervasive and inescapable. But how can …

Life, Death, And Iq: It's Much More Than Just A Score: Understanding And Utilizing Forensic Psychological And Neuropsychological Evaluations In Atkins Intellectual Disability/Mental Retardation Cases, John Matthew Fabian, William W. Thompson, Jeffrey B. Lazarus

Cleveland State Law Review

This article highlights best practices for assessing MR and ID in capital cases with an emphasis on Atkins trial preparation and potential problems the authors have noted through experience. These best practices in Atkins hearings concern issues for the lawyers, forensic psychologists, and neuropsychologists, which include:

1. Practice effects and IQ testing

2. Consistency of IQ scores over time

3. Flynn Effect

4. Malingering versus cognitive suboptimal effort

5. Lack of records indicating pre-age 18 diagnosis of MR/ID

6. Retrospective assessment of adaptive behaviors

7. Death row trends of increasing IQ over the years while incarcerated

8. Maladaptive behaviors versus …

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Cleveland State Law Review

The author contends that the doctrine of forfeiture of the right to assistance of counsel as a sanction for misconduct by a defendant towards the court or his counsel has no constitutional support in the principles that have defined the Sixth Amendment, is arbitrary in its application within the judicial system, and has become a refuge for courts, which have inadequately complied with established principles to protect fundamental rights.

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

Monetary Recoveries For State Crime Victims , Jeffrey A. Parness, Edmund Laube, Laura Lee

Cleveland State Law Review

In this Article, we explore the constitutional, statutory, and common law foundations of the three recovery avenues available to crime victims. We also explore the federal-state and interstate differences in these avenues, along with the associated barriers to recovery. Finally, we propose better ways in which to facilitate state crime victim recoveries.

Habeas Corpus Writ Of Liberty, Boumediene And Beyond, Scott J. Shackelford

Cleveland State Law Review

This book review focuses on Robert Walker's Habeas Corpus Writ of Liberty: English and American Origins and Development.

The Laboratory Of Judicial Debate: Examining A Commodity Based Approach To Punishing Sex Offences, Lucas R. Franklin

Cleveland State Law Review

This Note will examine commodity theory as a system for assigning punishment for sexual offenses in the context of the 2007 circuit split over defining “crime of violence” under § 2L1.2 of the Sentencing Guidelines. Part II will discuss the problem of punishing sex offenses and describe Donald Dripps' proposed commodity theory solution. Part III will discuss criticisms of using commodity theory as a basis for punishing sexual offenses. Part IV will provide background information on the U.S. Sentencing Guidelines generally and § 2L1.2 of the Guidelines specifically and explain why the circuit split serves as an ideal opportunity to …

Unintended Collateral Consequences: Defining Felony In The Early American Republic , Will Tress

Cleveland State Law Review

This Article concludes that the new definition of felony adopted in 1829 by the New York revisors reflected their pragmatic approach of choosing a middle path between the common law traditionalists, exemplified by Maryland, and the radical reforms enshrined in Livingston's penal code. Their choice was an expedient one, redefining an outdated term rather than writing it out of the law. Yet underlying their efforts was a belief that punishment was an instrument of moral reformation, a way of returning the convicted felon to the community as a productive citizen. Creating barriers to a convict's reentry into society with continuing …

Stripped Of Justification: The Eleventh Circuit's Abolition Of The Reasonable Suspicion Requirement For Booking Strip Searches In Prisons, Andrew A. Crampton

Cleveland State Law Review

Part II of this Note will provide an historical judicial background of the decisions leading up to the Powell v. Barrett decision. This section will first take a brief look at the history of the prison strip search before conducting an in-depth analysis at the Bell v. Wolfish decision, including the facts, rationale, and ambiguities of the decision. Next, this Note will examine the subsequent use of the Bell v. Wolfish decision by the federal courts in the context of strip searches conducted pursuant to facilities' booking policies, focusing on the rise of the “reasonable suspicion” standard. Part III of …

Violence, Fear, And Jason's Law: The Needless Expansion Of Social Control Over The Non-Dangerous Mentally Ill In Ohio, Jessica L. Mackeigan

Cleveland State Law Review

Ohio House Bill 299, known as Jason's Law in memory of Officer Jason West, proposes involuntary outpatient care for treatment resistant mentally ill individuals. Jason's Law should not be enacted as written because it will compel respondents to adhere to outpatient treatment based upon predictions of future danger to self or others rather than findings of imminent danger or incompetence, it will remove treatment flexibility currently guaranteed by Ohio law by extending the duration of treatment and limiting a treatment provider's discretion, it will compel the use of unproven medication over the objections of a presumably competent individual without requiring …

The Andrea Yates Case: Insanity On Trial, Phillip J. Resnick

Cleveland State Law Review

On June 20, 2001, Andrea Yates drowned each of her five children in her bathtub. The nation struggled to understand how a loving mother could systematically kill her children in apparent cold blood. No crime evokes more intense feelings than a mother killing her own children. There was extraordinary media coverage of her trial in Houston, Texas in 2002. Her defense attorneys, George Parnham and Wendell Odom entered a defense of not guilty by reason of insanity (NGRI) to multiple counts of first degree murder with death penalty specifications. The 2002 trial jury verdict of guilty was overturned on appeal. …

Punishing Women: The Promise And Perils Of Contextualized Sentencing For Aboriginal Women In Canada, Toni Williams

Cleveland State Law Review

This article examines the failure of Canadian sentencing reforms to remedy the over-incarceration of Aboriginal woman through exploration of a sentencing methodology that judges may employ to give effect to the reforms: the social contextualization of women's lawbreaking. Social context analysis developed as a critique of how the state controls and punishes women and as a way to expose failures of justice. More recently, commentators have suggested that the insertion of social context analysis into the sentencing process might allow courts to find new and more robust justifications for lowering the penalties they impose on women lawbreakers from marginalized communities. …

Inconsistent Methods For The Adjudication Of Alleged Mentally Retarded Individuals: A Comparison Of Ohio's And Georgia's Post-Atkins Frameworks For Determining Mental Retardation, Scott R. Poe

Cleveland State Law Review

This Note compares Ohio's and Georgia's post-Atkins frameworks for determining mental retardation. Ohio's framework offers a fairer application of Atkins and should serve as a guide for a national legal standard for use by state trial courts to determine mental retardation. Specifically, Ohio's use of preponderance of the evidence is a more appropriate standard of proof for determining mental retardation because it better reaches the overall goal in Atkins. Allowing the judge to make the mental retardation determination protects the alleged mentally retarded defendant from potential jury bias. Because Ohio's and Georgia's definitions of mental retardation are substantially similar and …

Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle

Cleveland State Law Review

This thirty-seven word provision [the tolling provision in the Antiterrorism and Effective Death Penalty Act] has been construed by the United States Supreme Court three times since 1996, and yet several questions remain unanswered. One such unanswered question is whether tolling occurs when a petitioner files a petition for writ of certiorari to the United State Supreme Court from the state court postconviction decision. In other words, does seeking the United States Supreme Court's review from a state court's final decision on an "application for State post-conviction or other collateral review" keep the state post-conviction application "pending?" That is the …

Booker And Our Brave New World: The Tension Among The Federal Sentencing Guidelines, Judicial Discretion, And A Defendant's Constitutional Right To Trial By Jury, Kristina Walter

Cleveland State Law Review

This Note examines the inherent conflict among the Federal Sentencing Guidelines, judicial discretion, and a defendant's Sixth Amendment right to a trial by jury. Part two of this Note will provide a historical overview of the Guidelines. Part three will discuss the application of the Guidelines and the role of juries and judges at sentencing hearings. Part four will highlight criticisms relating to how the Guidelines often usurp power from juries and judges. Part five will examine the milestone cases of Blakely v. Washington, United States v. Booker, and United States v. Fanfan (hereinafter "Booker" refers to the combined cases …

Shame And The Meaning Of Punishment, Chad Flanders

Cleveland State Law Review

This Essay critiques the shaming punishments debate, not in the interest of defending one side or the other, but to make more explicit the paradox with which this Essay began. This Essay also advances the proposal that a consistent liberalism, one that demands that all citizens be respected equally, is incompatible with any punishment that requires the infliction of hard treatment (treatment which inflicts pain or suffering) or humiliation on the offender. It is important to bracket the practical consequences of this proposal. Perhaps it was proposals like this one that made Nietzsche worry about the progressive softening of societies …