Criminal Law Commons^™

Surveillance And The Tyrant Test, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Scholarly Articles in Law Reviews & Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

Letter And Introduction: An Introduction By Angela J. Davis, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

An Introduction by Angela J. Davis Distinguished Professor of Law, American University Washington Collge of Law

The scourge of mass incarceration has plagued the United States for decades. With roughly 2.3 million people in federal and state prisons and close to 7 million people under some form of criminal justice control' in prison or jail or on probation and parole-this country maintains the unenviable status of having the highest incarceration rate in the world. Demands for reform have come in fits and starts, resulting in modest changes that have done little to reduce the number of people incarcerated or under …

Social Media Platforms In International Criminal Investigations, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

In the summer of 2017, hundreds of thousands of videos of the Syrian conflict suddenly disappeared from YouTube. The videos had been published on channels like the Aleppo Media Center, the Shaam News Agency, and the Violations Documentation Center in Syria, which are run by Syrian civil society groups that have been documenting war crimes and other human rights violations since the conflict began in 2011. In a war zone that has been extraordinarily difficult for outside investigators to access, the videos provided crucial evidence that many hoped would eventually lead to international criminal prosecutions. One can readily imagine that …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

Reimagining Prosecution: In Search Of The True Progressive, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal justice system. At least ninety percent of all criminal cases are prosecuted on the state level, and in all but five jurisdictions, the chief prosecutor (also known as the district attorney) is an elected official. Most district attorneys run unopposed and serve for decades. However, in recent years, a number of incumbent district attorneys have been challenged and defeated by individuals who pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system. These so-called “progressive prosecutors” have enjoyed some …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sacouto, Patricia Viseur Sellers

Scholarly Articles in Law Reviews & Journals

On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome …

Talking Foreign Policy: North Korea Summit, Paul Williams, Shannon French, Michael P. Scharf, Milena Sterio, Tim Webster

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Respect The Hustle: Necessity Entrepreneurship, Returning Citizens, And Social Enterprise Strategies, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This Article addresses a pervasive and growing problem for returning citizens – high rates of economic insecurity – and as a novel solution, proposes the creation of Economic Justice Incubators a new municipally led social enterprise strategy.

Mass incarceration is a national problem and requires comprehensive criminal justice reform. In contrast, the process of reentry is locally focused thanks to a complex web of collateral consequences. An estimated 641,000 people return home from prison each year, many to a limited number of economically distressed communities. Once released, their mobility is limited by the terms of their parole and the collateral …

Talking Foreign Policy: Responding To Rogue States, Paul Williams, Todd F. Buchwald, James Johnson, Michael P. Scharf, Milena Sterio

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Atrocity Prevention In The New Media Landscape, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Journalists have traditionally played a crucial role in building public pressure on government officials to uphold their legal obligations under the 1948 UN Convention on the Prevention and Punishment of Genocide. But over the past twenty years there has been radical change in the media landscape: foreign bureaus have been shuttered, young freelance journalists have taken over some of the work traditionally done by experienced foreign correspondents, and, more recently, the advent of social media has enabled people in conflict-affected areas to tell their own stories to the world. This essay assesses the impact of these changes on atrocity prevention …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Gundy And The Civil-Criminal Divide, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, …

Fall 2017 Symposium: The Challenge Of Crime In A Free Society: Fifty Years Later, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

My longstanding interest in the Johnson Crime Commission traces back to my earlier scholarly work on the history of criminal law reform movements, going back to the progressive criminal justice reform agenda in the early twentieth century and the activities of private law-reform coalitions and government-sponsored crime commissions during the interwar period, including the Wickersham Commission and the American Law Institute's various model code projects. This research eventually led me to the Johnson Commission, the subject of this Symposium.

The Innocence Movement And Misdemeanors, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

In recent years, the Innocent Movement has begun to focus its attention on wrongful misdemeanor convictions as a systemic problem. This Article analyzes eighty-five documented misdemeanor exonerations and concludes that innocence has been demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal “no controlled substance” despite the individual having pled guilty to misdemeanor drug possession; and police body camera or citizen videos that surface after a misdemeanor conviction to contradict the factual basis for that conviction. Strategic use of these relatively definitive methods of revealing wrongful misdemeanor convictions can call attention to the flaws in misdemeanor …

The Legal Risks Of Big Data Policing, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia Jones

Scholarly Articles in Law Reviews & Journals

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

Building Victim-Led Coalitions In The Pursuit Of Accountability, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

Assurances ofvictim participation in proceedings before the International Criminal Court and Extraordinary Chambers in the Courts of Cambodia have been seen as a welcome corrective to the flawed model of earlier tribunals. The first such tribunal created since the postwar period, the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the UN Security Council in May 1993 without even consulting those who survived the atrocities that gave rise to its creation, the majority of which took place in Bosnia-Herzegovina. Nor were victims formally incorporated into the ICTY's work except for those who provided testimony and other evidence. …

How Can I Reconcile With You When Your Foot Is On My Neck: The Role Of Justice In The Pursuit Of Truth And Reconciliation, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

In Ferguson, a wound bleeds. For 108 days, we have been in a state of prolonged and protracted grief.... We have had no choice but to cling together in hope, faith, love and indomitable determination to capture that ever-escaping reality of justice ... we find ourselves reinjured, continually heartbroken, and robbed of even the remote possibility of judicial resolution. For 108 days, we have continuously been admonished that we should "let the system work," and wait to see what the results are. The results are in. And we still don'thavejustice. . . . We, altogether, bound up in a system …

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

The Progressive Prosecutor: An Imperative For Criminal Justice Reform, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Equity In Contemporary Immigration Enforcement: Defining Contributions And Countering Criminalization, Jayesh Rathod, Alia Al-Khatib

Scholarly Articles in Law Reviews & Journals

Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding …

Criminalization And The Politics Of Migration In Brazil, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

The Grand Jury's Role In The Prosecution Of Unjustified Police Killings - Challenges And Solutions, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

One of the most profound tests of trust in a society is when the state must be relied upon to hold itself accountable for violating the rights of the governed. Nowhere is this more true than in the context of the prosecution of law enforcement officers for unjustified violence against civilians. The reasons for this are twofold. First, it should go without saying that police perform a vital - and extremely difficult and dangerous - function, and bravely serve as the prophylactic between civil society and complete chaos. As President Obama recently wrote, "[p]olice officers are the heroic backbone of …

Aba Criminal Justice Section Task Force On College Due Process Rights And Victim Protections: Recommendations For Colleges And Universities In Resolving Allegations Of Campus Sexual Misconduct, Brenda V. Smith, Andrew S. Boutros, Tamara Rice Lave, Pamela J. Bernard, Caroline Bettinger-Lopez, Robert M. Cary, Laura L. Dunn, Cynthia P. Garrett, Marcos E. Hasbun, Janet P. Judge, Bridget M. Maricich, Robin Rachel Runge, Lauren Schoenthaler, Mary P. Koss, Elise Lopez, Patrice Payne

Scholarly Articles in Law Reviews & Journals

The Executive Committee of the ABA Criminal Justice Section commissioned the Task Force on College Due Process Rights and Victim Protections in November 2016. Immediately after, extensive efforts were made to find members that represented all interested parties: victims, the accused, universities, other stakeholders, and national experts. The Task Force was fully constituted in the winter of 2017, and it ended up including two voting members who were originally liaisons from the ABA Commission on Domestic and Sexual Violence and the ABA Section of Civil Rights and Social Justice. This elevation was made in recognition of their significant contributions.