Criminal Law Commons^™

Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson

UF Law Faculty Publications

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many …

Jury Decision Making: Is The Devil In The Details? Observations Of A Criminal Justice Professor From Inside The Jury Room, Julie K. Coon

Journal of Criminal Justice and Law

This paper will first present highlights from the research literature about jury decision making. Second, observations about the jury selection process, along with details of the case, will be shared, including the stories told by the victim and the defendant.

Undergraduate Student Knowledge And Opinion About Campus Carrying And Other Firearms Laws, Heidi S. Bonner, Michele Stacey, Megan Davidson

Journal of Criminal Justice and Law

House Bill 937, passed in North Carolina in 2013, modified the provisions associated with concealed carry permissions on college campuses so that concealed carry permit holders could lawfully possess firearms on campus if they were kept in a locked compartment in their vehicles. The present study sought to explore the knowledge and perceptions of firearm law among a sample of undergraduate college students at one public university in North Carolina in the semester following the change in carrying provisions. The findings showed that students were not knowledgeable about gun laws and tended to be relatively supportive of gun rights, although …

Eyewitness Identification: Are We Asking The Right Questions?, Dyan Mcguire

Journal of Criminal Justice and Law

As courts struggle with issues concerning the admissibility of eyewitness identification, reliability has emerged as a touchstone of due process analysis. Factors commonly considered by courts in assessing reliability include the witness’s opportunity to view the criminal at the time of the crime, the witness’s degree of attention to the crime, the accuracy of any prior description of the criminal, the level of certainty demonstrated at the confrontation, and the amount of time between the crime and the confrontation. Unfortunately, the empirical record, including the results of this study, indicates that these factors do not have a strong or consistent …

Book Review: “Chokehold: Policing Black Men” (2017) By Paul Butler, Lee E. Ross

Journal of Criminal Justice and Law

No abstract provided.

Finding Prejudice: Ineffective Assistance Of Counsel In Lee V. United States, Michelle M. Watson, Melanie K. Worsely

Journal of Criminal Justice and Law

This paper discusses the 2017 case of Lee v. United States, in which the U.S. Supreme Court held for the first time that a defendant had been prejudiced by his counsel’s misinformation about the deportation consequences of a guilty plea. The Lee case marks a significant step in the Court’s recognition of ineffective assistance of counsel claims and criminal defendants’ right to receive accurate legal advice when deciding whether to accept a plea offer. The Court’s journey to Lee is examined, beginning with its declaration in 1985 that the test for ineffective assistance of counsel claims, established in Strickland …

Elder Care In The United States: Filial Responsibility Laws, Judicial Decisions, And Enforcement Issues, Sesha Kethineni, Gowtami Rajendran

Journal of Criminal Justice and Law

Filial responsibility (duty of care) laws often require adult children to support their elderly and infirm parents. Some states extend this obligation to close relatives. This responsibility may be enforced via statute or morally encouraged as part of religion within a culture. Given the diversity of cultures in America, the duty of care is difficult to define, enforce, and interpret when such cases come to the attention of the courts. Twenty-nine states that currently have statutes related to filial responsibility vary widely in defining the concept and specifying how to enforce the laws. Because many of these involve neglect rather …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

The Chilling Effect: The Politics Of Charging Rape Complainants With False Reporting, Lisa Avalos

Brooklyn Law Review

Although legal scholars have addressed the persistent failure to effectively investigate and prosecute rape despite decades of attempts at reform, the issue of prosecutors going so far as to bring false reporting charges against disbelieved sexual assault victims has received scant scholarly attention. This article calls attention to this particularly disturbing externality of the mishandling of rape cases. First contextualizing false reporting prosecutions of rape victims, the article demonstrates that such prosecutions are a direct outgrowth of poor quality, under-resourced police rape investigations. These prosecutions move forward as a result of several systemic problems: procedural irregularities and informal policies that …

Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo

Brooklyn Journal of International Law

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the context of …

Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis

Brooklyn Journal of Corporate, Financial & Commercial Law

As of late, labor markets have been a focus point in antitrust enforcement. In 2016 the Department of Justice (DOJ) announced an unprecedented policy to pursue no-poaching agreements criminally. More recently, in January 2018, the DOJ’s Attorney General indicated that the agency is following through on the policy. This Article argues that the DOJ’s new policy is logical and prudent because the economic effects that no-poaching agreements have on labor markets mirror the anticompetitive effects of customer allocation agreements. It also shows that the policy is well-supported by labor economics and antitrust policies. In efforts to comply with the DOJ’s …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Criminalizing Battered Mothers, Courtney Cross

Utah Law Review

How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she …

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …

Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane

Utah Law Review

The families of Eric Garner, Laquan McDonald, Freddie Gray, and Walter Scott have obtained multimillion dollar settlements from the cities in which their family members lost their lives. This Article identifies and labels these settlements as a legal response unique to high-profile policeinvolved deaths: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. Section 1983 litigation rather than litigation itself to compensate police-involved shooting victims’ family members. This Article explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal of accelerated civil …

Volume 1, Issue 2 (2017) Inaugural Issue

International Journal on Responsibility

Contents:

Introduction: Terry Beitzel, Types of Responsibility: Challenges and Opportunities

3 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.

6 – 26 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.

27 – 64 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?

65 – 77 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.

78 – 96 John Fairfield, Beyond non-violence to courtship.

97 – 98 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Faculty Scholarship

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them. …

Conviction Beyond A Reasonable Suspicion? The Need For Strengthening The Factual Basis Requirement In Guilty Pleas, Myeonki Kim

Concordia Law Review

Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itself has a …

Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of Extended Joint Enterprise, Victoria Bo Wang

Concordia Law Review

This Article argues that the decision in Miller v The Queen [2016] HCA 30 is supported neither by common law precedent in Australia nor the historical English precedents that informed the development of Australia’s common law doctrines. It is submitted that the majority judgment misquoted old English authorities to try to equate foresight with intention and argues that the High Court of Australia engaged in judicial activism, because its decision rested predominantly on the policy views of the judges. Moreover, it is argued that the case highlighted the urgent need for law reform in Australia. The Article puts forward a …

Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

The Reliability Of The Adversarial System To Assess The Scientific Validity Of Forensic Evidence, Andrew D. Goldsmith

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

Is Your Smartphone Conversation Private? The Stingray Device’S Impact On Privacy In States, Katherine M. Sullivan

Catholic University Law Review

“Where are you” is a common question to receive on your cellphone, but it is up to you whether or not to respond with an answer. No longer does this question need to be asked due to advancements in surveillance technology. When pinpointing a criminal suspect, the question can be answered by local and state agencies, without the person of interest knowing, by using a StingRay device. The main question to be asked is does the conduct of locating a criminal suspect’s exact location without a warrant, violate an individual’s Fourth Amendment Constitutional right to be free from unreasonable searches. …

What U.S Defense Attorneys Know About Facial Composites, Marisa H. Jaross

Student Theses

The Innocence Project’s DNA exoneration database (2018) indicates that approximately 27% of wrongful conviction cases containing eyewitness evidence also included a composite or sketch[1] of the perpetrator. This statistic is alarming, given that composites are rarely used in criminal investigations (PERF, 2013), but not surprising considering “good” composites are notoriously difficult to construct (e.g., Wells, Charman, & Olson, 2005). It is well understood that eyewitness evidence can be particularly persuasive evidence of guilt for juries and thus we were interested in learning more about how defense attorneys prepare for trial with respect to this specific type of eyewitness evidence. …

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.

Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson

Catholic University Law Review

The Supreme Court decided Brady v. Maryland in an effort to ensure fair trials and fair outcomes. The Brady decision requires prosecutors to disclose exculpatory evidence regarding guilt of the defendant. The Brady rule is meant to ensure innocent defendants are not convicted for crimes they did not commit. This rule should have unanimous support from both prosecution and defense teams, and yet Brady violations continue to occur within prosecutor offices around the country.

No offender highlights the short comings of the current system more so than the United States Attorney’s Office. Since the Brady decision, the USAO has repeated …

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

William & Mary Law Review

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …