Criminal Law Commons^™

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 …

Examining Montana's Right To Attack Unconstitutional Prior Convictions At Sentencing: State V. Maine, Paul M. Leisher

Montana Law Review

The Maine Court had good reason to reject Custis. Between 1967 when Burgett announced the rule that a current sentence could not be enhanced based on an unconstitutional prior sentence and 1994 when Custis limited the scope of that rule, all but one of the federal circuit courts to consider the issue held the Burgett Court’s rationale for barring the use of a conviction obtained in violation of Gideon must apply to other constitutional rights as well. The arguments for limiting collateral attacks on prior convictions at sentencing to only claims of Gideon violations are unpersuasive. Faced with the decision …

“Willing Victims” And “Innocence Unguarded”?: Ambiguous Volition, Perishable Promises, And Disavowed Consent In Fielding’S Amelia, Nicole M. Wright

Studio for Law and Culture

This paper examines Henry Fielding’s novel Amelia (1751) as a prescient literary contemplation of the temporality of consent. The novel’s preoccupation with impulsive consent and fluctuations of intention is set against a background of shifting legal standards concerning the imperishability of consent. Characters feel bound by norms discouraging the retraction of consent. Amelia’s private sexual episodes prepare the reader to deliberate over crises of accountability in non-sexual public settings (the criminal justice system, the gambling den, Vauxhall, and elsewhere). Modern-day legislation and university sexual codes enshrining the stepwise gauging of consent derive from such early reappraisals of the duration of …

Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy J. Sepinwall

Studio for Law and Culture

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation’s behalf. But according to the responsible corporate officer (RCO) doctrine – a doctrine that is growing more widespread – the state may also prosecute and punish those corporate executives who, although perhaps lacking “consciousness of wrongdoing,” nonetheless have “a responsible share in the furtherance of the transaction which the statute outlaws.” In other words, the RCO doctrine imposes criminal liability on the executive who need not have participated in her corporation’s crime; …

Crashing The Misdemeanor System, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosiac Approach, Stephen E. Henderson

Journal of Criminal Law and Criminology

No abstract provided.

Differences In Punitiveness Across Three Cultures: A Test Of American Exceptionalism In Justice Attitudes, Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, John M. Darley

Journal of Criminal Law and Criminology

No abstract provided.

Humiliation, Degradation, Penetration: What Legislatively Required Pre-Abortion Transvaginal Ultrasounds And Rape Have In Common, Kelsey Anne Green

Journal of Criminal Law and Criminology

No abstract provided.

The Search For A Constitutional Justification For The Noncommercial Prong Of 18 U.S.C. § 2423(C), Jessica E. Notebaert

Journal of Criminal Law and Criminology

No abstract provided.

The Innocent Defendant's Dilemma: An Innovative Empirical Study Of Plea Bargaining's Innocence Problem, Lucian E. Dervan, Vanessa A. Edkins Ph.D.

Journal of Criminal Law and Criminology

In this Article, Professors Dervan and Edkins discuss a recent psychological study they completed regarding plea bargaining and innocence. The study, involving dozens of college students and taking place over several months, revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The Article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved of …

"Dearest Property": Digital Evidence And The History Of Private "Papers" As Special Objects Of Search And Seizure, Donald A. Dripps

Journal of Criminal Law and Criminology

No abstract provided.

Fighting Cybercrime After United States V. Jones, David Gray, Danielle Keats Citron, Liz Clark Rinehart

Journal of Criminal Law and Criminology

No abstract provided.

Cybersurveillance Without Restraint? The Meaning And Social Value Of The Probable Cause And Reasonable Suspicion Standards In Governmental Access To Third-Party Electronic Records, Andrew E. Taslitz

Journal of Criminal Law and Criminology

No abstract provided.

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Predisposition And Positivism: The Forgotten Foundations Of The Entrapment Doctrine, T. Ward Frampton

Journal of Criminal Law and Criminology

For the past eighty years, the entrapment doctrine has provided a legal defense for defendants facing federal prosecution, but only for those lacking criminal “predisposition” prior to the government’s inducement. The peculiar contours of this doctrine have generated significant academic debate, yet this scholarship has failed to explain why the entrapment doctrine developed as it did in the first instance. This Article addresses this gap by examining competing views on criminality and punishment in America during the doctrine’s emergence, highlighting the significant, though largely forgotten, impact of positivist criminology on the early twentieth-century legal imagination. Though positivism has long since …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

Journal of Criminal Law and Criminology

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psycho logical deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious …

When Innocent Defendants Falsely Confess: Analyzing The Ramifications Of Entering Alford Pleas In The Context Of The Burgeoning Innocence Movement, Sydney Schneider

Journal of Criminal Law and Criminology

No abstract provided.

Disparities In Postconviction Remedies For Those Who Plead Guilty And Those Convicted At Trial: A Survey Of State Statutes And Recommendations For Reform, Rebecca Stephens

Journal of Criminal Law and Criminology

No abstract provided.

Child Pornography And The Restitution Revolution, Cortney E. Lollar

Journal of Criminal Law and Criminology

No abstract provided.

Structural Overdelegation In Criminal Procedure, Anthony O’Rourke

Journal of Criminal Law and Criminology

No abstract provided.

Compensation Statutes And Post-Exoneration Offending, Evan J. Mandery, Amy Shlosberg, Valerie West, Bennett Callaghan

Journal of Criminal Law and Criminology

No abstract provided.

Leveraging Death, Sherod Thaxton

Journal of Criminal Law and Criminology

No abstract provided.

Walking Firearms To Gunrunners: Atf’S Flawed Operation In A Flawed System, Michael Krantz

Journal of Criminal Law and Criminology

No abstract provided.

Foreword, Lily Katz

Journal of Criminal Law and Criminology

No abstract provided.

Privacy Versus Security, Derek E. Bambauer

Journal of Criminal Law and Criminology

No abstract provided.

Order, Technology, And The Constitutional Meanings Of Criminal Procedure, Thomas P. Crocker

Journal of Criminal Law and Criminology

No abstract provided.

Criminalizing Hacking, Not Dating: Reconstructing The Cfaa Intent Requirement, David Thaw

Journal of Criminal Law and Criminology

No abstract provided.

Adventures On The Autobahn And Infobahn: United States V. Jones, Mandatory Data Retention, And A More Reasonable “Reasonable Expectation Of Privacy”, John A. Stratford

Journal of Criminal Law and Criminology

No abstract provided.

Rethinking The Use Of Community Supervision, Cecelia Klingele

Journal of Criminal Law and Criminology

No abstract provided.