Criminal Law Commons^™

Intimate Partner Violence Strategies: Models For Community Participation, Jenny Rivera

Maine Law Review

Over the last several years, states have passed legislation to address intimate partner violence, more commonly known as “domestic violence,” or violence and abuse between current and former spouses, or persons in similar intimate relationships. Much of this legislation is composed of civil and criminal provisions, including criminal sanctions for intimate partner violence. The constitutionality, practical impact, and present and potential benefits of these statutes are the topic of political debates, scholarly diatribes, and litigation. The passage and implementation of federal legislation specifically designed to address violence between present and former spouses and intimate partners reflects a sea change in …

Zapped! An Analysis Of Washington’S Electronic Monitoring Agreement, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

The State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0 is the State of Washington’s first judicially resolved case involving an automated sales suppression device. Months of negotiations led to a plea agreement and the State’s first electronic sales monitoring agreement (August 30, 2017). The taxpayer violated RCW 82.32.290 (4)(a) by knowingly possessing, and knowingly using a Zapper to suppress sales.

The penalties in this case were severe. Not only were all taxes, penalties, and interest lawfully due required to be paid, but as a Class C felony incarceration of up to 5 years, a $10,000 fine, or both …

18 U.S.C. § 922(G)(1) Under Attack: The Case For As-Applied Challenges To The Felon-In-Possession Ban, Kari Lorentson

Notre Dame Law Review

Part I of this Note outlines the relevant statutory scheme governing the felon-in-possession ban, along with its applicable exceptions. Part II surveys landmark Supreme Court precedent related to the Second Amendment— namely, District of Columbia v. Heller and McDonald v. City of Chicago. In Part III, this Note conducts an overview of the current circuit split percolating in the courts of appeals. Part IV presents a rationale and justification for permitting judicial review of as-applied challenges to § 922(g)(1). Finally, Part V provides a critique of the Binderup analysis and puts forth an alternative standard to analyze similar cases.

Solitary Troubles, Alexander A. Reinert

Notre Dame Law Review

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Incorrigible Students: A Criminal Oxymoron?, Shannon Lewry

Notre Dame Law Review

The Note proceeds in two Parts. The remainder of the Introduction presents a closed door: the Supreme Court’s hesitancy, to date, to find juvenile- life-without-parole sentences unconstitutional under the Eighth Amendment. After exploring the contours of the closed Door, the Introduction turns to an open window: education law. This, I argue, may be wielded to attack the lawfulness of juvenile-life-without-parole sentences on wholly nonconstitutional grounds. The Introduction concludes with remarks regarding this Note’s relevance and timeliness. Part I tracks the Note’s central argument, premise by premise, that state compulsory education laws and juvenilelife- without-parole sentences are wholly incompatible. Part II …

Illegitimate Overprescription: How Burrage V. United States Is Hindering Punishment Of Physicians And Bolstering The Opioid Epidemic, Alyssa M. Mcclure

Notre Dame Law Review

Due to the concerns Burrage raises and its implications for the nation’s current opioid crisis, this Note proposes that Congress should broaden the circumstances in which the penalty enhancement of section 841(b) may be applied. Part I of this Note discusses the opioid crisis and the role physicians play in it. Part II explores the section of the Controlled Substances Act used to criminally charge physicians and the exception the Act provides for physicians prescribing opioids within the scope of relevant medical conduct and professional practice. Part III analyzes Burrage v. United States and examines the immediate legal consequences of …

What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides …

Jeremias V. State, 134 Nev. Adv. Op. 8 (Mar. 01, 2018), Maliq Kendricks

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that a judgment of conviction, pursuant to a jury verdict, of one count each of conspiracy to commit robbery and burglary while in possession of a deadly weapon and two counts each of robbery with the use of a deadly weapon and murder with the use of a deadly weapon, commands a death sentence.

Lone Wolf Terrorism: Types, Stripes, And Double Standards, Khaled A. Beydoun

Northwestern University Law Review

The recent spike in mass shootings, topped by the October 1, 2017, Las Vegas massacre, dubbed the “deadliest mass shooting in modern U.S. history,” has brought newfound urgency and attention to lone wolf violence and terrorism. Although a topic of pressing concern, the phenomenon—which centers on mass violence inflicted by one individual—is underexamined and undertheorized within legal literature. This scholarly neglect facilitates flat understandings of the phenomenon and enables the racial and religious double standards arising from law enforcement investigations and prosecutions of white and Muslim lone wolves.

This Essay contributes a timely reconceptualization of the phenomenon, coupled with a …

Criminal Procedure And The Good Citizen, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Andrews V. State, 134 Nev. Adv. Op. 12 (Mar. 01, 2018), Samantha Scofield

Nevada Supreme Court Summaries

Under NRS 453.3385, simultaneous possession of different schedule I controlled substances creates separate offenses and the weights of the controlled substances shall not be aggregated together.

Reaching A Sense Of Justice: Understanding How The Facilitation Theory Of Prosecution Under Federal Criminal Law Can Be Used To Hold Hard Targets Accountable For Financial Crimes And Corporate Corruption, Thomas M. Dibiagio

Washington and Lee Law Review Online

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of the criminal laws. …

To Deceive Or Not To Deceive: Law Enforcement Officers Gain Broader Approval To Use Deceptive Tactics To Obtain Voluntary Consent, Alex G. Myers

Mercer Law Review

In the modern era of criminal investigations, law enforcement officers use many tactics from their bag of tricks to catch criminals. One such tactic, deception, has long been used to lull suspects into a false sense of security. Another tactic, voluntary consent, is widely used to gain permission to search suspects or their premises. While such tactics are prevalent, they must not run into conflict with the United States Constitution. Specifically, the Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and …

Book Review: La Muerte Del Verdugo: Reflexiones Interdisciplinarias Sobre El Cadáver De Los Criminales De Masa, Vincent Druliolle

Genocide Studies and Prevention: An International Journal

Review of La Muerte del Verdugo. Reflexiones Interdisciplinarias Sobre el Cadáver de los Criminales de Masa, ed. Séviane Garibian (Buenos Aires: Miño y Dávila editores, 2016)

Sadomasochism: Descent Into Darkness, Annotated Accounts Of Cases, 1996-2014, Robert Peters

Dignity: A Journal of Analysis of Exploitation and Violence

A collection of accounts of sadomasochistic sexual abuse from news reports and scholarly and professional sources about the dark underbelly of sadomasochism and the pornography that contributes to it. It focuses on crimes and other harmful sexual behavior related to the pursuit of sadistic sexual pleasure in North America and the U.K. It is intended to be a resource to educate people about how sadomasochism can lead to harmful and even deadly sadistic sexual behavior.

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena E. Beety, Gregory M. Gilchrist, William W. Berry Iii

Florida Law Review

The many contributing factors and potential solutions to plea bargaining’s innocence issue are too numerous to examine here. Plea bargaining, however, as illustrated above, is an important piece of the modern innocence debate and was the subject that prompted the 2015 innocence discussion. In the essays that follow, several others who participated in the roundtable share their perspectives on various nuances and facets of the issue of innocence.

Professor Richard Leo begins the collection with an analysis of the shifting meaning of “innocence” in American scholarship over the last few decades. His analysis of the concepts of “factual innocence” and …

Reconstructing The Right Against Excessive Force, Avidan Y. Cover

Florida Law Review

Police brutality has captured public and political attention, garnering protests, investigations, and proposed reforms. But judicial relief for excessive force victims is invariably doubtful. The judicial doctrine of qualified immunity, which favors government interests over those of private citizens, impedes civil rights litigation against abusive police officers under 42 U.S.C. § 1983. In particular, the doctrine forecloses lawsuits unless the law is clearly established that the force would be unlawful, requiring a high level of specificity and precedent that is difficult to satisfy. Further tilting the balance against excessive force victims, Fourth Amendment case law privileges the police perspective, incorporating …

Cause-In-Fact After Burrage V. United States, Eric A. Johnson

Florida Law Review

What significance, if any, should state courts assign to the U.S. Supreme Court’s unanimous 2014 decision in Burrage v United States? In Burrage, the Supreme Court relied on “ordinary meaning” and “traditional understanding” in concluding that causation elements in federal criminal statutes nearly always require so-called “but-for” causation. State courts, by contrast, traditionally have applied two important modifications to the but-for test: (1) an acceleration rule, which assigns liability to defendants who hasten “even by a moment” the coming to fruition of the proscribed harm; and (2) a contribution rule, which assigns liability to defendants who “contribute” incrementally …

Individual Accountability For Corporate Crime, Gregory Gilchrist

Georgia State University Law Review

Corporate crime is too often addressed by fining the corporation, leaving the real people who committed the crime facing no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.

This Article contends that the effort to introduce accountability by increasing prosecutions …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott

Maine Law Review

After years of negotiation, a majority of the nations of the world have agreed to create an International Criminal Court. It will be given jurisdiction over three core types of offenses: genocide, crimes against humanity, and war crimes. With regard to war crimes, however, nations that join the court may take advantage of an “opt-out” procedure, whereby the court's jurisdiction over these offenses may be rejected for seven years after the court comes into existence. For various reasons, a small number of nations, including the United States, have refused to sign the treaty creating the court. While heralded as a …

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford

Maine Law Review

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines …

Fixing A Non-Existent Problem With An Ineffective Solution: Doe V. Snyder And Michigan's Punitive Sex Offender Registration And Notification Laws, Joshua E. Montgomery

Akron Law Review

Sex offender registration and notification laws (SORAs) in the United States apply not only to those who commit sex offenses after the enactment of such laws, but also to those who committed sex offenses before those laws were enacted. However, the Ex Post Facto Clause of the Constitution prevents the retroactive application of a punitive law; this means that a person cannot be punished for a bad act that the person committed before the law punishing that act was enacted. Importantly, the Ex Post Facto Clause does not prohibit the retroactive application of a civil, regulatory—i.e., non-punitive—law. Thus, to survive …

The Hardship That Is Internet Deprivation And What It Means For Sentencing: Development Of The Internet Sanction And Connectivity For Prisoners, Mirko Bagaric, Nick Fischer, Dan Hunter

Akron Law Review

Twenty years ago, the internet was a novel tool. Now it is such an ingrained part of most people’s lives that they experience and exhibit signs of anxiety and stress if they cannot access it. Non-accessibility to the internet can also tangibly set back peoples’ social, educational, financial, and vocational pursuits and interests. In this Article, we argue that the sentencing law needs to be reformed to adapt to the fundamental changes in human behavior caused by the internet.

We present three novel and major implications for the sentencing law and practice in the era of the internet. First, we …

Dissecting The Aba Texas Capital Punishment Assessment Report Of 2013: Death And Texas, A Surprising Improvement, Patrick S. Metze

Akron Law Review

Professor Metze dissects the American Bar Association report, September 2013, entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report—An Analysis of Texas’s Death Penalty Laws, Procedures and Practices. This Report was produced by the ABA’s Section of Individual Rights and Responsibilities, specifically the Death Penalty Due Process Review Project, which identified 12 inadequacies in the Texas Capital Punishment System, recommended changes, and evaluated compliance. Now, four years and two legislative sessions later, this Article explores what Texas has done in the interim to improve its death penalty process. Incredibly, the Article concludes …

Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris

Texas A&M Law Review

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant …

State V. Brackett: Does The State Have A Right Of Appeal?, Theodore A. Small

Maine Law Review

In State v. Brackett, the defendant was charged with kidnapping, gross sexual assault, burglary, and criminal threatening with the use of a dangerous weapon. The State of Maine filed an in limine motion to exclude any evidence relating to the victim's past sexual behavior, including evidence that the victim may have been a prostitute sometime prior to the incident in dispute. Although evidence of a victim's past sexual behavior is generally inadmissible. The State appealed. A divided Maine Supreme Judicial Court, sitting as the Law Court, declined to rule on the merits of the appeal, holding that the appeal was …

Overawed And Overwhelmed: Juvenile Miranda Incomprehension, Sara P. Cressey

Maine Law Review

Each year approximately one million juveniles in the United States are arrested and read the Miranda warnings. Though studies have shown that the majority of those children do not understand the warnings, most of them must decide alone whether to waive their constitutional rights— and nearly all ultimately make that choice without the help of an attorney. The Supreme Court has recognized that children differ from adults in critical ways, and those differences have important implications for juveniles’ ability to meaningfully waive their Miranda rights. To ensure that juveniles’ constitutional rights are protected, the Supreme Court should take up the …

The Persistence Of Fatal Police Taserings In 2017, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings are a persistent phenomenon in the United States. Every year dozens of Americans are fatally tasered by our police.This article looks at the number of deaths cause by police tasering during 2017.

Exploring Places Of Street Drug Dealing In A Downtown Area In Brazil: An Analysis Of The Reliability Of Google Street View In International Criminological Research, Elenice De Souza Oliveira, Ko-Hsin Hsu

Department of Justice Studies Faculty Scholarship and Creative Works

This study assesses the reliability of Google Street View (GSV) in auditing environmental features that help create hotbeds of drug dealing in Belo Horizonte, one of Brazil’s largest cities. Based on concepts of “crime generators” and “crime enablers,” a set of 40 items were selected using arrest data related to drug activities for the period between 2007 and 2011. These items served to develop a GSV data collection instrument used to observe features of 135 street segments that were identified as drug dealing hot spots in downtown Belo Horizonte. The study employs an intra-class correlation (ICC) statistics as a measure …