Criminal Law Commons^™

(Ad)Ministering Justice: A Prosecutor's Ethical Duty To Support Sentencing Reform, Michael Cassidy

Loyola University Chicago Law Journal

This Article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level―promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a …

Terry Stops, Anonymous Tips, And Driving Under The Influence: A Study Of Illinois Law, Charles Burns, Michael Conte

Loyola University Chicago Law Journal

In the recent case of Navarette v. California, No. 12-9490 (U.S. Apr. 22, 2014), the United States Supreme Court held that an anonymous tip can support an investigatory stop in the absence of independent corroboration by the arresting officer under the Fourth Amendment to the United States Constitution. In the fourteen years between Navarette and Florida v. J.L., 529 U.S. 266 (2000), in which the Court last addressed anonymous tips, lower courts across the country struggled to determine how United States Supreme Court precedents on anonymous tips apply in the context of drunk or reckless driving. Illinois courts …

Undead Statutes: The Rise, Fall, And Continuing Uses Of Adultery And Fornication Criminal Laws, Joanne Sweeny Dr.

Loyola University Chicago Law Journal

Cohabitation is a reality for a majority of Americans. Nonmonogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. …

The Hanging Judge By Michael A. Ponsor––Capital Punishment: Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Cleveland State Law Review

No abstract provided.

Limiting Criminal Law’S “In For A Penny, In For A Pound” Doctrine, Wesley M. Oliver

Law Faculty Publications

The Supreme Court took two cases this Term involving doctrines of criminal law typically dealt with by state courts, and in each of them, it limited criminal liability for harms not attributable to a defendant’s culpability.

Although the Court interprets federal criminal statutes with some frequency, it rarely considers provisions of statutes that would provide persuasive authority for the interpretation of state criminal codes—at least not the most used provisions of state criminal codes. Unlike state criminal laws, federal criminal laws have jurisdictional requirements and generally have more complex components. It is typically these unique aspects of federal criminal laws …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

Smoke And Mirrors: Model Penal Code § 305.7 And Compassionate Release, E. Lea Johnston

UF Law Faculty Publications

The American Law Institute has revised the sentencing articles of the Model Penal Code to include three important sentence modification measures. One of these provisions, Model Penal Code § 305.7, would allow a judge to reduce a prison sentence at any time for any “compelling” reason, if the purposes of sentencing justify sentence modification. Compelling circumstances may include advanced age, physical infirmity, or any other circumstance that sufficiently affects the retributive or utilitarian aims that animate limiting retributivism, the philosophy undergirding the revised Model Penal Code sentencing articles. Limiting retributivism provides that individual sentences should occur within the bounds of …

Reflections On The Indictment Of Sitting Heads Of State And Government And Its Consequences For Peace And Stability And Reconciliation In Africa, Charles Chernor Jalloh

Articles

In these remarks, the author considers the most recent challenge to the application of international criminal justice in Africa: Kenya's controversial November 2013 proposal to amend the Rome Statute of the International Criminal Court to temporarily exempt from prosecution sitting presidents accused of involvement with international crimes. He examines several legal and practical reasons why such a proposal is untenable. Instead, citing the principle of complementarity and urging the principled use of judicial and prosecutorial discretion, he contends that much of the African Union's current concerns about the Kenya Situation can be addressed within the confines of existing Rome Law. …

Walk & Turn, Finger To Nose, One Leg Stand: Oh My - How Florida Courts Have Defined Field Sobriety Exercises, Amar V. Patel, Krysten A. Pogue

St. Thomas Law Review

If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. When law enforcement stops a vehicle based on a reasonable suspicion of DUI, probable cause must be established before making an arrest. Field sobriety exercises ("FSEs") are commonly used police procedures to establish that probable cause. Developing probable cause is of critical importance, not only because it is a prerequisite to a lawful arrest, but also because citizens who …

The Admissibility Of Weapons Not Used In The Crime Charged, Melynda Melear

St. Thomas Law Review

In many prosecutions in which weapons have been used to commit charged offenses, the State seeks to introduce into evidence weapons not actually used in the crime but purportedly related either to the charged crime or to the credibility of a witness. For years, courts have struggled with the issue of whether the State has established the relevancy of a weapon not used in the crime underlying the case at hand as well as whether the admission of a weapon under those circumstances would cause unfair prejudice to the defendant. Case law on the relevancy of weapon evidence presents a …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Marxist And Soviet Law, Stephen C. Thaman

All Faculty Scholarship

This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Abolishing Jailhouse Snitch Testimony, Russell D. Covey

Faculty Publications By Year

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. …

Finality And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

New science and evolving societal views have led commentators to question the doctrine of finality. This parallels commentators’ embrace of rehabilitation during the middle of the last century. Today, casting off the strictures of finality and embracing rehabilitation are considered complementary positions, but finality has historically been understood as promoting rehabilitation. This shift stems from our changing understandings of rehabilitation. Rehabilitation focuses on offender change — on whether an offender is a final product or, rather, whether he is capable of transformation. Offender change, though, could be either change in character or change in behavior, or a combination of these …

A Second Chance: Rebiography As Just Compensation, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

Scholarly Publications

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

Remaking Indians, Remaking Citizens: Peruvian And Mexican Perspectives On Criminal Law And National Integration, Lior Ben David

Studio for Law and Culture

At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone significant evolution, while legal reforms officially “turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent against a background of many years, during which the legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples, portraying “The Indian” as an anomaly in a society of free end equal citizens. This article examines the images, representations and treatment of the Indians and “the Indian Question” in Peruvian and Mexican Criminal Law during the first …

Executing Whiteness: Fictional And Nonfictional Accounts Of Capital Punishment In The United States, 1915-1940, Daniel Lachance

Studio for Law and Culture

Over the course of the nineteenth century, elites in the United States increasingly sought to privatize executions and rationalize execution protocols. The source of this change is well known to historians of punishment: a fear that public executions had become unwieldy spectacles drove state actors to move these events into jail yards, at first, and then, with the advent of new technologies, into the interior of centralized prisons that were often far from the county in which the crime had occurred. The centralization of executions and the rationalization of execution protocols reflected and reinforced a more bureaucratic image of the …

The Attrition Of Rights Under Parole, Tonja Jacobi, Song Richardson, Gregory Barr

Faculty Articles

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and …

The Cure For Young Prosecutors' Syndrome, Ronald F. Wright, Kay L. Levine

Faculty Articles

Although legal scholars treat prosecutors like interchangeable parts, we argue—based on interviews and surveys of over 200 state prosecutors in eight offices—that scholars should be alert to the differences among them, because new prosecutors experience their professional role differently than their veteran colleagues do. This divergence happens because, as new prosecutors gain experience, their professional identities shift—they become more balanced over time. This Article explores the prosecutor’s professional transformation and the possible catalysts for that change.

When experienced prosecutors describe their career trajectories, they regret the highly adversarial posture they adopted earlier in their careers. While the constant quest for …

Riley V. California: The New Katz Or Chimel?, Adam Lamparello, Charles Maclean

Richmond Journal of Law & Technology

To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Kidnapping Incorporated: The Unregulated Youth-Transportation Industry And The Potential For Abuse, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Strangers come into a child's room in the middle of the night, drag her kicking and screaming into a van, apply handcuffs, and drive her to a behavior modification facility at a distant location. What sounds like a clear-cut case of kidnapping is complicated by the fact that the child's parents not only authorized this intervention, but also paid for it. This scarcely publicized practice-known as the youth-transportation industry-operates on the fringes of existing law. The law generally presumes that parents have almost unlimited authority over their children, but the youth-transportation industry has never been closely examined regarding exactly what …

The Icc's Exit Problem, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload …

Crime Victims' Rights During Criminal Investigations? Applying The Crime Victims' Rights Act Before Criminal Charges Are Filed, Paul G. Cassell, Nathanael J. Mitchell, Bradley J. Edwards

Journal of Criminal Law and Criminology

No abstract provided.

Shadow Immigration Enforcement And Its Constitutional Dangers, Maureen A. Sweeney

Journal of Criminal Law and Criminology

No abstract provided.

Extending Sentencing Mitigation For Deserving Young Adults, Kelsey B. Shust

Journal of Criminal Law and Criminology

No abstract provided.

Negotiating Peremptory Challenges, Caren Myers Morrison

Journal of Criminal Law and Criminology

No abstract provided.

Confronting Cognitive “Anchoring Effect" And “Blind Spot” Biases In Federal Sentencing: A Modest Solution For Reforming A Fundamental Flaw, Mark W. Bennett

Journal of Criminal Law and Criminology

No abstract provided.

Life And Death In Kentucky: Past, Present, And Future, Roberta M. Harding

Law Faculty Scholarly Articles

This article provides a historical survey of capital punishment in the Commonwealth of Kentucky, paying particular attention to gender and race. The author concludes that given the lack of recent executions that it is perhaps time to make legislative changes to the Commonwealth’s death penalty practice.