Criminal Law Commons^™

Another Collateral Consequence: Kicking The Victim When She’S Down, Lauren N. Hancock

Washington and Lee Law Review

Every state has a victim compensation fund that provides financial relief to victims of crime who have no other way to pay for medical expenses, funeral costs, crime scene cleanup, or other costs associated with the crime. States impose their own eligibility requirements to determine which victims can receive funding. Six states prohibit victims with certain criminal histories from obtaining compensation. This means that innocent victims of crime are left with nowhere to turn because of something that they already “paid” for. This leaves victims, who are likely already in a financially precarious situation due to their felon status, with …

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

Kids, Not Commodities: Proposing A More Protective Interpretation Of The Child Sex Trafficking Statute For Victims And Defendants, Kimberly Blasey

Washington and Lee Law Review

This Note addresses how courts should interpret the “reasonable opportunity to observe” standard when assessing evidence. In other words, what quantum of evidence is, and should be, sufficient to prove a defendant had a “reasonable opportunity to observe” a sex trafficking victim? Would a singular brief encounter with an older-appearing prostitute satisfy the standard? If so, would the mere fact that the “prostitute” was actually a minor be the only evidence needed to obtain a conviction? Or would the defendant’s intention and attempt to order services from an adult prostitute shed light on the reasonableness of his observation opportunity? Moreover, …

Reinvesting In Rico With Cryptocurrencies: Using Cryptocurrency Networks To Prove Rico’S Enterprise Requirement, Andrew Robert Klimek

Washington and Lee Law Review

This Note received the 2019 Roy L. Steinheimer Law Review Award.

This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions. RICO subsection 1962(a) addresses the infiltration of an enterprise by investing proceeds from racketeering activities and this Note contends that a cryptocurrency network could serve as the “enterprise” required by the statute. Instead of having to investigate and prove the relationships in an underlying criminal enterprise, proponents of a RICO case against crypto-criminals could rely on well-documented and publicly available information about the cryptocurrency network to prove the enterprise and the …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Reasonable Doubt And Relativity, Michael D. Cicchini

Washington and Lee Law Review

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.

Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, …

Collateral Consequences Of Pretrial Diversion Programs Under The Heck Doctrine, Bonnie Gill

Washington and Lee Law Review

Following the Introduction, Part II of this Note gives an overview of federal and state pretrial diversion programs. Part III explores the statutory and doctrinal background of 42 U.S.C. § 1983, including its interaction with another civil rights statute, 28 U.S.C. § 2254, the federal habeas statute. Both statutes are essential to understanding the Heck v. Humphrey doctrine’s purpose and application to pretrial diversion participants. Part III also explores the development and interpretation of the Heck doctrine in four Supreme Court cases. Part IV discusses the circuit split as it currently stands. Part V presents three proposals for resolving the …

Individualized Sentencing, William W. Berry

Washington and Lee Law Review

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept …

Sentence For The Damned: Using Atkins To Understand The “Irreparable Corruption” Standard For Juvenile Life Without Parole, Zachary Crawford-Pechukas

Washington and Lee Law Review

This Note suggests that guidance should be drawn from the Supreme Court’s death penalty jurisprudence regarding the execution of intellectually disabled offenders. Atkins v. Virginia paved the way for the juvenile sentencing cases as the Supreme Court for the first time found that, under the Eighth Amendment, a selected class of offenders—the intellectually disabled — were not eligible for the state’s harshest penalty—the death penalty— because of their diminished culpability. Atkins similarly left the state courts to figure out how to decide whether an individual offender met this amorphous standard, “intellectually disabled.” As state courts grappled with this standard and …

287(G) Agreements In The Trump Era, Huyen Pham

Washington and Lee Law Review

No abstract provided.

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of …

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Washington and Lee Law Review

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Washington and Lee Law Review

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

In Their Defense: Conflict Between The Criminal Defendant’S Right To Counsel Of Choice And The Right To Appointed Counsel, Kit Thomas

Washington and Lee Law Review

No abstract provided.

Recasting Vagueness: The Case Of Teen Sex Statutes, Cynthia Godsoe

Washington and Lee Law Review

When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets”—broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of these statutes …

Examining Rule 11(B)(1)(N) Error: Guilty Pleas, Appellate Waiver, And Dominguez Benitez, Leanna C. Minix

Washington and Lee Law Review

No abstract provided.

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich George Mason University

Washington and Lee Law Review

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

The Prior Convictions Exception: Examining The Continuing Viability Of Almendarez-Torres Under Alleyne, Meg E. Sawyer

Washington and Lee Law Review

No abstract provided.

Taking Pedophilia Seriously, Margo Kaplan

Washington and Lee Law Review

This Article pushes lawmakers, courts, and scholars to reexamine the concept of pedophilia in favor of a more thoughtful and coherent approach. Legal scholarship lacks a thorough and reasoned analysis of pedophilia. Its failure to carefully consider how the law should conceptualize sexual attraction to children undermines efforts to address the myriad of criminal, public health, and other legal concerns pedophilia raises. The result is an inconsistent mix of laws and policies based on dubious presumptions. These laws also increase risk of sexual abuse by isolating people living with pedophilia from treatment.

The Article makes two central arguments: (1) although …

Comment On The Prior Convictions Exception: Examining The Continuing Viability Of Almendarez-Torres Under Alleyne, Kevin Flynn

Washington and Lee Law Review

No abstract provided.

The Irrelevance Of Prisoner Fault For Excessively Delayed Executions, Russell L. Christopher

Washington and Lee Law Review

Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining …

The Prior Convictions Exception—A Comment, Matthew Engle

Washington and Lee Law Review

No abstract provided.

The Role Of Enticement In A Violation Of A Protection Order, Olivia M. Fritsche

Washington and Lee Law Review

No abstract provided.

Toward A Right To Litigate Ineffective Assistance Of Counsel, Ty Alper

Washington and Lee Law Review

No abstract provided.

Why Gideon Failed: Politics And Feedback Loops In The Reform Of Criminal Justice, Donald A. Dripps

Washington and Lee Law Review

No abstract provided.

Heeding Gideon’S Call In The Twenty-First Century: Holistic Defense And The New Public Defense Paradigm, Robin Steinberg

Washington and Lee Law Review

No abstract provided.

The Problem With Misdemeanor Representation, Erica Hashimoto

Washington and Lee Law Review

No abstract provided.

Gideon Skepticism, Alexandra Natapoff

Washington and Lee Law Review

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, it generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic …