Criminal Law Commons^™

Collateral Consequences Of Criminal Convictions: Confronting Issues Of Race And Dignity, Michael Pinard

Faculty Scholarship

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, …

Punishment As Suffering, David C. Gray

Faculty Scholarship

In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected …

Can An Ethical Person Be An Ethical Prosecutor? A Social Cognitive Approach To Systemic Reform, Lawton P. Cummings

Faculty Scholarship

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging 'moral disengagement' in prosecutors. 'Moral disengagement' refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement …

Reflections And Perspectives On Reentry And Collateral Consequences, Michael Pinard

Faculty Scholarship

This essay addresses the continued and dramatic increase in the numbers of individuals released from correctional institutions and returning to communities across the United States. It provides a brief history of the collateral consequences of criminal convictions, and the ways in which these consequences impede productive reentry. It then highlights national and state efforts to address to persistent reentry obstacles and to better understand the range and scope of collateral consequences. It concludes by offering suggestions for reform.

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

Faculty Scholarship

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

Accountability For System Criminality, Mark A. Drumbl

Scholarly Articles

Not available.

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson

Scholarly Articles

Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

Modeling The Effects Of Peremptory Challenges On Jury Selection And Jury Verdicts, Roger Allen Ford

Law Faculty Scholarship

Although proponents argue that peremptory challenges make juries more impartial by eliminating “extreme” jurors, studies testing this theory are rare and inconclusive. For this article, two formal models of jury selection are constructed, and various selection procedures are tested, assuming that attorneys act rationally rather than discriminate based on animus. The models demonstrate that even when used rationally, peremptory challenges can distort jury decision making and undermine verdict reliability. Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction …

On Genocide, Anthony D'Amato

Faculty Working Papers

The crime of genocide is the newest international crime. It must be kept as a separate, distinct, and coherent concept. It is the first truly subjective crime; all other crime, though requiring mens rea, require only that the defendant consciously committed the criminal acts. In the case of genocide, however, the underlying criminal acts are no different from the acts required to prove ordinary crimes. The difference is one of motive. What is being punished by the crime of genocide is the selection of victims according to their involuntary membership in four kinds of groups: national, ethnical, racial, or religious. …

Capital Punishment In Illinois In The Aftermath Of The Ryan Commutations: Reforms, Economic Realities, And A New Saliency For Issues Of Cost, Leigh Buchanan Bienen

Faculty Working Papers

In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state's attorneys , and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county …

International Bridges To Justice (Ibj) - Criminal Defence Training, Lien Centre For Social Innovation

Social Space

Criminal justice systems across the world continue to be plagued by problems such as arbitrary detention, torture and an inadequate knowledge of the rights of defendants. IBJ hopes to establish a legal resource hub for criminal defenders and justice practitioners across Asia by taking a collaborative and proactive approach with Asian governments and fostering leadership and innovation in the area of criminal justice reform.

The Business Of Punishing: Impediments To Accountability In The Private Corrections Industry, Stephen Raher

Richmond Journal of Law and the Public Interest

To understand the contemporary use of contractor-operated prisons, one must appreciate the political and economic developments which allowed privatization to enter the corrections industry. Accordingly, this article starts with a brief history of privatized corrections in the United States. The following section explores how the modem marketplace for private prisons has been shaped by two prominent dynamics-the emergence of a national market for prison beds and the massive expansion of the nation's immigrant detention system. The paper then considers the general implications of non-governmental prison operation, with a focus on how contractors have exploited their private status to the detriment …

The Expanding Definition Of Crime And Its Effect On The Individual: A Multilevel Modeling Analysis, Teresa A. Dalton

Electronic Theses and Dissertations

Incarceration is one of the most extreme exercises of state power. For the past twenty-five years the rates at which states have been locking up their residents have been growing at a distressing pace. While violent crime rates have been declining, arrest rates for lower-level crimes have been steadily rising. Two new indices are developed to explain the relationship between lower-level crime and violent crime--the punitive severity index (PSI) and the punitive progression index (PPI). The PSI is the ratio of low-level crime to violent crime, a static indicator of punitiveness, while the PPI is a measure of the rate …

Reconstituting The “Un-Person”: The Khmer Krom &The Khmer Rouge Tribunal, Mahdev Mohan

2008 Asian Business & Rule of Law initiative

Despite the grand promise of victim participation at the ongoing trials of Extraordinary Chambers in the Courts of Cambodia (“ECCC”), this article notes the plight of an undeserved ethnic community, the members of which have become forgotten victims of genocide. The Article argues that if the ECCC’s trials are to have any resonance for the Khmer Krom, its affiliates and victims’ lawyers should avoid “othering” Khmer Krom victims of genocide, and instead adopt ethnographic approaches to lawyering that seek to ascertain communal desires for vindication.

Diminishing The Legal Impact Of Negative Social Attitudes Toward Acquaintance Rape Victims, Michelle J. Anderson

Publications and Research

No abstract provided.

Repeat Offenders: If They Learn, We Punish Them More Severely, Murat C. Mungan

Scholarly Publications

Many legal systems are designed to punish repeat offenders more severely than first time offenders. However, existing economic literature generally offers either mixed or qualified results regarding optimal punishment of repeat offenders. This paper analyzes optimal punishment schemes in a two period model, where the social planner announces possibly-different sanctions for offenders based on their detection history. When offenders learn how to evade the detection mechanism employed by the government, escalating punishments can be optimal. The contributions of this paper can be listed as follows: First, it identifies and formalizes a source which may produce a marginal effect in the …

International Decision, African Court On Human And Peoples’ Rights, Michelot Yogogombaye V. Republic Of Senegal, Charles Chernor Jalloh

Faculty Publications

State Parties have automatic access to the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania. In stark contrast, individuals and NGOs (i.e. those most likely to bring cases alleging human rights violations), can only initiate proceedings if the respondent State has entered a special declaration accepting the Court’s competence to receive such cases. Predictably, in a continent rife with human rights violations, only a few African States have accepted the Court’s jurisdiction to hear such (individual or NGO) petitions since its formal creation in June 1998. After years without hearing any cases, the Court finally received a …

Review Of “Sisters Outside: Radical Activists Working For Women Prisoners, By Jodie Michelle Lawston”, Lisa A. Leitz

Peace Studies Faculty Articles and Research

Book review of Jodie Michelle Lawston's "Sisters Outside: Radical Activists Working for Women Prisoners".

Thinking Like A Public Interest Lawyer: Theory, Practice, And Pedagogy, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Mandatory Minimalism, Erik Luna, Paul G. Cassell

Scholarly Articles

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps …

The Contradiction: Animal Abuse - Alive And Well, 44 J. Marshall L. Rev. 209 (2010), Katie Galanes

UIC Law Review

No abstract provided.

The International Criminal Court And The Closure Of The Time-Limited International And Hybrid Criminal Tribunals, Valerie Oosterveld

Law Publications

No abstract provided.

The 'New' Exclusionary Rule Debate: From 'Still Preoccupied With 1985' To 'Virtual Deterrence', Donald A. Dripps

Fordham Urban Law Journal

The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court's cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for …

Book Review, Eleanor Thompson, Evan Wilson

Human Rights Brief

No abstract provided.

Updates From The International And Internationalized Criminal Courts, Anna Maitland, Shahroo Yazdani, Cyrena Khoury, Paul Rinefierd, Chris Valvardi, John Coleman

Human Rights Brief

No abstract provided.

Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard Leo

Faculty Scholarship

No abstract provided.

Cell Phone - A "Weapon" Of Mass Discretion, Mark L. Mayakis

Campbell Law Review

Initially, this Comment will discuss the development of the search incident to arrest exception from the warrant requirement and how this exception has been generally defined and judicially interpreted. The next section will include a discussion of how the search incident to arrest exception has been applied to searches of the content stored within pagers. This Comment will then explain how modern cell phones have created difficulties for courts applying the search incident to arrest exception, causing these courts to diverge down two different lines of reasoning, ultimately reaching opposite conclusions. Finally, this Comment will reiterate the necessity that the …