Criminal Law Commons^™

The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.

Notre Dame Law Review

Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in …

The Enduring Challenges For Habeas Corpus, Diane P. Wood

Notre Dame Law Review

Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes—well intended as they were by the enactors and implementers— have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve …

Adequate And Effective: Postconviction Relief Through Section 2255 And Intervening Changes In Law, Ethan D. Beck

Notre Dame Law Review

This Note begins in Part I by providing a general introduction to modern postconviction relief, with special attention to the interaction between habeas corpus petitions and the § 2255 motion that performs much of the work traditionally assigned to the habeas writ. Section I.A begins to describe the debate in the federal circuit courts over the proper scope of the clause of § 2255 with which this Note is primarily concerned, the so-called “savings clause” of § 2255(e). Section I.B relates the importance of correctly construing the savings clause, as well as the dangers of a split in circuit interpretation …

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.

An Examination Of Defense Attorney Knowledge Of Dispatcher Practices In Eyewitness Calls, Elena Christofi

Student Theses

911 dispatchers are often the first point of contact for witnesses to crimes. Dispatchers have an important role in collecting information related to a witness’ observations and recollection of events, and this information can serve as primary evidence in criminal cases. Therefore, it is crucial that evidence collected from eyewitnesses is as accurate and detailed as possible. In the present study, we investigated defense attorneys’ perceptions on how dispatchers gather information from eyewitnesses during 911 calls, because little is known with respect to how defense attorneys review, use, and challenge 911 calls. Using an online survey, we asked defense attorneys …

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

Jones V. Mississippi: Brief Of Erwin Chemerinsky, Eric M. Freedman, Craig Futterman, Martin Guggenheim, Bernard E. Harcourt, Shani M. King, Jeffrey L. Kirchmeier, Issa Kohler-Hausmann, Leah Litman, Christopher Seeds, Alison Siegler, Carol Steiker, David A. Strauss, Carlos Manuel Vazquez, Gideon Yaffe, Steven Zeidman As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Amici are scholars of federal courts and/or criminal law, studying the operation and purposes of federal jurisdiction and criminal law. Although they have divergent legal and political outlooks, amici share a keen interest in the federal courts and criminal law, having published extensively on these topics and collected decades of experience examining issues implicated in this case.

Amici share a concern that the lower court’s judgment threatens the rule of law this Court announced in Miller v. Alabama, 567 U.S. 460 (2012) 4 and affirmed in Montgomery v. Louisiana, 136 S. Ct. 718 (2016) that life without the …

Federal Protection For "Fur-Babies": A Legislative Proposal, Rebecca Ferrari

Pepperdine Law Review

Americans love their animals, but America doesn’t protect them. Across the country, animals continue to be classified as mere property, undeserving of any basic rights and unprotected by the animal welfare statutes that do exist, but often remain unenforced. This Article proposes a comprehensive animal protection system that includes the following components: (a) general prohibitions against animal crushing, cruelty, neglect, and abuse; (b) a civil action provision that will allow humane society officers to investigate violations of those prohibitions; (c) a provision establishing animal legal advocates to work alongside the officers and prosecute violations; and (d) an animal-suit provision to …

Emergency Parole Release For Older Parole-Eligible Doc Inmates, David I. Bruck

Scholarly Articles

Professor Bruck writes to Secretary Moran and Chairwoman Bennett to urge them to protect elderly Virginia prison inmates from the risk of death from COVID-19 by granting immediate parole release to as many over-60 parole-eligible prisoners as possible, upon a showing that they are at low risk to re-offend, and have a supportive home to go to once released.

The Incomplete Rule Of Completeness: Taking A Stand On Federal Rule Of Evidence 106, Louisa Heiny, Emily Nuvan

Utah Law Faculty Scholarship

The common law Rule of Completeness served an important role in Anglo-American jurisprudence for centuries. Historically, it was a rule guided by principles of fundamental fairness and was designed to prevent parties from introducing incomplete and misleading statements at trial.

What was once a simple rule has been muddled by Federal Rule of Evidence 106. The common law rule language was lost when Rule 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether Rule 106 applies to oral as well …

The Probationer, The Free Man, And The Fourth Amendment: Constitutional Protections For Those Who Have Served Their Sentences And Those Who Have Not, Rachel Ness-Maddox

Mercer Law Review

In Park v. State, the Georgia Supreme Court evaluated whether persons convicted of sexual offenses and subsequently classified as "sexually dangerous predator[s]" may be required to wear Global Positioning System (GPS) tracking devices after serving their full sentences, including fulfilling probation or parole requirements. The court held that, under the Fourth Amendment of the United States Constitution, such a requirement is invalid because it infringes on the right free people have against unreasonable searches and seizures executed by the state—no matter the crimes for which they were convicted or their status as registered sex offenders. However, the court made …

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

Washington Law Review

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.1 After decades of attempting to eliminate the requirement, conservative justices …

Narrative, Culture, And Individuation: A Criminal Defense Lawyer’S Race-Conscious Approach To Reduce Implicit Bias For Latinxs, Walter I. Goncalves Jr.

Seattle Journal for Social Justice

No abstract provided.

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

The Application Of Neuroscience Evidence On Court Sentencing Decisions: Suggesting A Guideline For Neuro-Evidence, Yu Du

Seattle Journal for Social Justice

No abstract provided.

Providing A Meaningful Opportunity For Release: A Proposal For Improving Washington's Miller-Fix, Maya L. Ramakrishnan

Washington Law Review

Miller v. Alabama1 set forth new constitutional requirements that necessitated changes in Washington State’s sentencing law for children. In response, the Washington legislature passed RCW 9.94A.730: a parole statute that presumptively releases children who committed crimes after they have served twenty years. Unless the parole board finds they are more likely than not to commit a future crime if released, the Miller-fix statute requires that eligible petitioners are released. The parole board has wide discretion in determining whether someone is more likely than not to commit a future crime because the statute provides no guidance about how to make this …

Cameras Down, Hands Up: How The Supreme Court Chilled The Development Of The First Amendment Right To Record The Police, Christina Murray

Mercer Law Review

You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.

This Comment will track the development of the right to record …

Criminal Law, Thomas D. Church

Mercer Law Review

Last year was another busy year for the United States Court of Appeals for the Eleventh Circuit. While the court continued developing federal criminal law within the circuit, the court was also forced to adjust its own precedents in light of several landmark opinions by the Supreme Court of the United States.

In United States v. Davis, for example, the Supreme Court struck down the residual clause in 18 U.S.C. § 924(c), thus overruling the Eleventh Circuit's en banc decision in Ovalles v. United States. Another one of the Supreme Court's most noteworthy opinions came on appeal directly from …

Shoot At Me Once: Shame On You! Shoot At Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders, Jameson M. Fisher

Mercer Law Review

Qualified immunity is a judicially created doctrine that has resulted in expansive protections for lower-level state officials for constitutional violations. Guidance from the Supreme Court of the United States regarding the interpretation of "clearly established rights" has been scarce and vague at best. As a result, district courts faced with qualified immunity assertions regarding a § 1983 claim take a restrictive approach to the doctrine's analysis often by relying on factually similar cases from binding authorities. Historically, innocent bystanders have had no clearly established right to be free from excessive force where force was applied to subdue the target of …

It's All In The Dna—How United States V. Hano Extends The Statute Of Limitations For The Eleventh Circuit, Caroline Walker

Mercer Law Review

It is likely that most professionals in all industries would agree that technology is rapidly evolving, most considering that assertion as a major understatement and some struggling to balance the variety of changes. In the legal realm, the DNA revolution has impacted both criminal prosecution and defense, specifically wrongful convictions, exonerations, proof of guilt at trial, and the reopening of cold cases. For example, since the first DNA exoneration in 1989, there have been 367 DNA exonerees in thirty-seven states to date. Forty-four percent of the exonerations involved misapplication of forensic science. Other law enforcement tools, such as rape kits …

An Uneven Playing Field: The Government Extended Rights Denied To Defendants On Appeal, Breyana Fleming

Mercer Law Review

Many people find themselves in the crosshairs of the criminal justice system as defendants. In preparing to defend themselves against the charges being brought by the government, these defendants cannot predict whether the outcome of a criminal proceeding will result in a finding of innocence or guilt. Defendants can, however, generally depend on uniformity in the law as it pertains to appellate procedure. Still, there are times where this uniformity will be sacrificed, and further, when it will be done in an unjust manner. For instance, when an appellate court allows the federal government to maintain an argument against a …

Determining Intellectual Disability In Death Penalty Cases: A State-By-State Analysis, Jennifer Laprade, John L. Worrall

Journal of Criminal Justice and Law

In Moore v. Texas (2017), the U.S. Supreme Court ruled that Texas death penalty definitions of intellectual disability were inadequate because they strayed too far from clinical definitions. This study examines how each state defines intellectual disability with regard to death penalty eligibility. It reveals a wide variation in the standards used by states, with no clear consensus on definitions of intellectual disability or who should measure it. Variations pertain to age at onset, proof of intellectual disability status at the time of the crime, burden of proof required to make the intellectual disability determination, and who makes the final …

The Life-Course Of Juvenile Lifers: Understanding Maturation And Development As Miller And Its Progeny Guide Juvenile Life Sentence Release Decisions, Robert Johnson, Margaret E. Leigey

Journal of Criminal Justice and Law

The U.S. Supreme Court anticipated that most juveniles sentenced to life-without-parole prison terms might well “mature and develop” over the course of their lives in confinement. As a result, the Court maintained that they should be given the opportunity to demonstrate their changed characters and earn a chance at release from prison. In this article, we rely on the research on life sentence prisoner adjustment, together with our experience as experts in juvenile life-without-parole re-sentencing cases. We trace the maturation and development of juveniles sentenced to life terms, a multifaceted process that ultimately leads most juveniles sentenced to life to …

The Science Of Deception Detection: A Literature And Policy Review On Police Ability To Detect Lies, Jillian R. Yarbrough

Journal of Criminal Justice and Law

Humans have a strong “truth” default, meaning that when processing incoming information, they will passively believe statements made by others. However, idle acceptance can put people at risk for deception (Levine, 2019). Research shows that 60% of people lie during a typical 10-minute conversation (Bradberry, 2017). Considering the pervasiveness of lying, it is easy to recognize deception as a challenge for individuals involved in law enforcement because they are expected to distinguish between truth and lies daily. If deception detection is an essential component of law enforcement, are techniques available that law enforcement can apply during interrogations to improve the …

Controlled Observation: The Challenges Of Therapy For The Mentally Ill Incarcerated Population, Esther Tingué

Dissertations, Theses, and Capstone Projects

Popular perception and objective of incarceration is confinement, brutality and in some cases inhumane conditions. But what about the incarcerated population who suffer from the additional burden of mental illness? How does confinement affect mentally ill inmates? This capstone project asks: (1) how do individuals/organizations provide rehabilitative services in this evolved culture of crime and punishment? And (2) how is therapy provided in a restricted environment? I examine these questions from the perspective of the therapist, the person who (in a restricted environment) takes on the responsibility of treating and managing the effects of mental illness for this population.

Holding Both: Witness Aid Workers' Experiences Supporting Intimate Partner Violence Survivors In District Attorney Offices, Ovita Williams

Dissertations, Theses, and Capstone Projects

Social workers and advocates practice in district attorney (DA) offices as witness or victim aid workers providing intimate partner violence (IPV) survivors counseling, advocacy, resources and information as they enter the criminal legal system (CLS). Their experiences, in particular how stress and vicarious trauma (VT) manifested for them in this unique setting within the criminal legal system, had not yet been examined. This phenomenological study sought to better understand (1) how social workers and advocates in a prosecutor’s office experience practice with intimate partner violence survivors, (2) their experiences of stress, secondary traumatic stress, vicarious trauma, and supports, and (3) …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

The Case For A Federal Criminal Court System (And Sentencing Reform), Christopher Slobogin

Vanderbilt Law School Faculty Publications

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to …

State V. Bassett: Washington Courts Can No Longer Sentence Juveniles To Die In Prison, Carolyn Mount

Seattle Journal for Social Justice

No abstract provided.