Criminal Law Commons^™

Eyewitness Identification And The Problematics Of Blackstonian Reform Of The Criminal Law, Lawrence Rosenthal

Journal of Criminal Law and Criminology

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs.

This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason …

A Material Change To Brady: Rethinking Brady V. Maryland, Materiality, And Criminal Discovery, Riley E. Clafton

Journal of Criminal Law and Criminology

How we think about the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. This Comment demonstrates why materiality, and the theory of juridical proof informing that standard of materiality, must be redefined for Brady v. Maryland doctrine and criminal process. First, the Comment delineates the theory of explanationism—the revolutionary paradigm shift unfolding in the theory of legal proof. Explanationism conceptualizes juridical proof as a process in which the factfinder weighs the competing explanations offered by the parties against the evidence and the applicable burden of proof. Applying explanationism to …

Retroactive Legality: Marijuana Convictions And Restorative Justice In An Era Of Criminal Justice Reform, Deborah M. Ahrens

Journal of Criminal Law and Criminology

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active …

Prosecutorial Declination Statements, Jessica A. Roth

Journal of Criminal Law and Criminology

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

“You May Be Down And Out, But You Ain’T Beaten”: Collective Bargaining For Incarcerated Workers, Keith Armstrong

Journal of Criminal Law and Criminology

The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs …

Stepping Into The “Wrong” Neighborhood: A Critique Of The People V. Albillar’S Expansion Of California Penal Code Section 186.22(A) And A Call To Reexamine The Treatment Of Gang Affiliation, Samuel Dipietro

Journal of Criminal Law and Criminology

Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious …

Can You See And Hear Us, Ms. Smith?: Protecting Defendants’ Right To Effective Assistance Of Counsel When Using Audio And Video Conferencing In Judicial Proceedings, Ivaylo Valchev

Journal of Criminal Law and Criminology

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not …

Progressive Prosecution In A Pandemic, Chad Flanders, Stephen Galoob

Journal of Criminal Law and Criminology

No abstract provided.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Journal of Criminal Law and Criminology

No abstract provided.

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe

Journal of Criminal Law and Criminology

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

Race, Reform, & Progressive Prosecution, Daniel Fryer

Journal of Criminal Law and Criminology

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial …

Rural Spaces, Communities Of Color, And The Progressive Prosecutor, Maybell Romero

Journal of Criminal Law and Criminology

The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors.

Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and …

Prosecutors And Their State And Local Polities, Ronald F. Wright

Journal of Criminal Law and Criminology

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts.

Duties to …

Regulating High-Frequency Trading: The Case For Individual Criminal Liability, Orlando Cosme Jr.

Journal of Criminal Law and Criminology

The popular imagination of securities trading is a chaotic, physical stock exchange—a busy floor with hurried traders yelling, “buy, buy, buy!” While this image is a Hollywood and media favorite, it is no longer accurate. In 2019, most securities trading is conducted electronically on digital markets. One type of trading strategy, high-frequency trading, utilizes algorithms, data centers, fiber optic cables, and supercomputers to obtain an edge in the market. High-frequency trading has leveraged advancements in technology to constitute over half of all trading volume in a given day. High-frequency trading, however, has come under scrutiny in recent years as it …

Motus Animi In Mente Insana: An Emotion-Oriented Paradigm Of Legal Insanity Informed By The Neuroscience Of Moral Judgments And Decision-Making, Federica Coppola

Journal of Criminal Law and Criminology

Legal insanity is deeply rooted in an intellectualistic conception of the capacity for moral rationality. The vast majority of insanity standards essentially consider the integrity of the defendant’s cognitive faculties at the time of the offense. However, the cognitivist model of legal insanity collides with the body of neuroscientific and behavioral literature about the critical role of emotions in moral judgments and decision-making processes. Drawing upon this scientific knowledge, this Article reforms the intellectualistic substance of the capacity for moral rationality that underlies the insanity doctrine by including emotions in its relevant psychological set. Hence, it provides a revised model …

Coerced Fate: How Negotiation Models Lead To False Confessions, Kiera Janzen

Journal of Criminal Law and Criminology

Police interrogators across the United States employ tactics that can lead to coerced, often false, confessions. While police departments have shifted away from physically coercive methods of interrogation, psychologically coercive practices that utilize deceit have taken their place. The reliability of confession evidence becomes a significant concern when interrogators elicit confessions using these techniques. Further demonstrating the need for change in this realm, false confessions and wrongful convictions place a financial burden on cities and taxpayers, who foot the bill for settlements and damages resulting from these cases. The current legal framework in the U.S. permits—by failing to explicitly prohibit—these …

A Guiding Hand Or A Slap On The Wrist: Can Drug Courts Be The Solution To Maternal Opioid Use?, Cara O'Connor

Journal of Criminal Law and Criminology

As the opioid epidemic has expanded its reach, the number of pregnant women addicted to opioids has increased exponentially in recent years. The increase in the number of opioid-addicted pregnant women has resulted in a drastic expansion in the number of newborns who experience Neonatal Abstinence Syndrome (NAS). Newborns affected with NAS experience painful withdrawal and cost more to care for due to their increased health needs. In an effort to address the growing number of pregnant women using opioids and babies born with NAS, some states have turned to the criminal justice system. Three states–Tennessee, South Carolina, and Alabama–have …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen Henderson

Journal of Criminal Law and Criminology

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves.

In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Journal of Criminal Law and Criminology

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, …

Perception Versus Punishment In Cybercrime, James T. Graves, Alessandro Acquisti, Ross Anderson

Journal of Criminal Law and Criminology

No abstract provided.

Torture And Respect, Jacob Bronsther

Journal of Criminal Law and Criminology

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment—torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain …

Mens Rea Reform And Its Discontents, Benjamin Levin

Journal of Criminal Law and Criminology

This Article examines the contentious debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of conduct that is quite common. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view …

Reading The Prisoner's Letter: Attorney-Client Confidentiality In Inmate Correspondence, Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, Katherine Koehler

Journal of Criminal Law and Criminology

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

In this Article, we explain the vital …

Death With Dignity For The Seemingly Undignified: Denial Of Aid In Dying In Prison, Kathleen Messinger

Journal of Criminal Law and Criminology

The medical community has fundamentally changed how we think about life and death. Humans in privileged parts of the world are living longer and have access to life-saving treatment. The focus on quantity of life then has shifted to emphasizing quality of life and questioning whether longevity should at the expense of comfort or satisfaction. The conversation surrounding quality of life, and by extension end-of-life care, has included whether a competent adult has a right, or should have a right to end their own life on their own terms. The history of aid in dying is wrought with political ideology, …

The Federal Bank Robbery Act: Why The Current Split Involving The Use Of Force Requirement For Attempted Bank Robbery Is Really An Exception, Paul Piaskoski

Journal of Criminal Law and Criminology

The Federal Bank Robbery Act had been on the books for seventy years by the time the federal appellate courts began to openly quarrel about the necessary elements of attempted bank robbery under the first paragraph of the Act, 18 U.S.C. § 2113(a). Specifically, the circuits disagree as to whether proof of actual force is required to sustain a conviction of attempted bank robbery, or if attempted force is sufficient for a conviction. Legal scholars have repeatedly framed this split in authority as a consequence of competing methods of statutory interpretation. In this Comment, however, I argue that it is …

Mass Incarceration Paradigm Shift?: Convergence In An Age Of Divergence, Mugambi Jouet

Journal of Criminal Law and Criminology

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had …

Measuring Change: From Rates Of Recidivism To Markers Of Desistance, Cecelia M. Klingele

Journal of Criminal Law and Criminology

Reducing the incidence of crime is a primary task of the criminal justice system and one for which it rightly should be held accountable. The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment. This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of criminal justice interventions or of those who participate in them. This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid, stand-alone metric …

The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones

Journal of Criminal Law and Criminology

The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against …

The Regulatory Challenge Of Public Corruption, Lauren M. Ouziel

Journal of Criminal Law and Criminology

No abstract provided.