Criminal Law Commons^™

Lgbt Rights In The Fields Of Criminal Law And Law Enforcement, Carrie L. Buist

University of Richmond Law Review

In couching this discussion within the theoretical and practical application of queer criminology, this Essay will highlight the marginalization of LGBTQ+ folks and explore the impact that intersectionality has on the experiences of the LGBTQ+ community with special attention on law enforcement. For example, queer criminology studies the persistent distrust that the LGBTQ+ community has of police as well as the experiences of LGBTQ+ identified police officers and other agents within the criminal legal system. Further, as the current Administration continues to roll back the rights and liberties of the LGBTQ+ community, there must be a focus on how past …

Artificial Agents In Corporate Boardrooms, Sergio Alberto Gramitto Ricci

Faculty Works

Thousands of years ago, Roman businessmen often ran joint businesses through commonly owned, highly intelligent slaves. Roman slaves did not have full legal capacity and were considered property of their co-owners. Now business corporations are looking to delegate decision-making to uber intelligent machines through the use of artificial intelligence in boardrooms. Artificial intelligence in boardrooms could assist, integrate, or even replace human directors. However, the concept of using artificial intelligence in boardrooms is largely unexplored and raises several issues. This Article sheds light on legal and policy challenges concerning artificial agents in boardrooms. The arguments revolve around two fundamental questions: …

Sexual Violence And Future Harm: Lessons From Asylum Law, Shawn E. Fields

Utah Law Review

Sexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape.

This Article suggests a different approach, one justified by a novel analogy to the refugee …

Conventions And Convictions: A Valuative Theory Of Punishment, Daniel Maggen

Utah Law Review

The one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, grounded in the valuative function punishment serves.

Offering …

Have Problem-Solving Courts Changed The Practice Of Law?, Cynthia Alkon

Faculty Scholarship

Thirty years after the start of the first drug court, it is a good time to examine what the problem-solving court movement has contributed to our criminal legal system overall. It is also a good time to ask what it would look like if these courts had made "monumental change" in our criminal legal system. This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration. Next this article will discuss how problem-solving courts work, including by looking at the roles of the professionals, the judges and …

When Agencies Make Criminal Law, Brenner M. Fissell

Faculty Publications

The nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced—even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the severe aspects …

Free Battered Texas Women: Survivor-Advocates Organizing At The Crossroads Of Gendered Violence, Disability, And Incarceration, Cathy Marston Phd

Verbum Incarnatum: An Academic Journal of Social Justice

This article recaps my symposium presentation, where I argue that feminist organizing strategies are central to healing our society and creating restorative justice from my perspective as a survivor of occupational injury, battering, and criminalization for self-defense. This includes the creation of Free Battered Texas Women. We prefer to think of ourselves as survivor-advocates who use a variety of tactics to empower ourselves, incarcerated battered women, and citizens. These strategies include pedagogy; poetry and other written forms; art; and legislative advocacy. I blend this grassroots activism with feminist disability theory, radical feminist theory, feminist ethnography, and feminist criminology.

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can …

The Legal Fiction Of The Right To Defense In The Colombian Criminal Justice System, Manuel Iturralde

Indiana Journal of Global Legal Studies

In the first section of the article, I will discuss Omar's case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar's case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated …

Book A Stay And Win U.S. Citizenship: Examining Birth Tourism As A Business Subject To Federal Regulatory Controls, Nicole Marie Laudick

Georgia Journal of International & Comparative Law

No abstract provided.

You Made Gideon A Promise, Eh?: Advocating For Mandated Publicly Appointed Counsel At Bail Hearings In The United States Through Domestic Comparisons With Canadian Practices And Legal Considerations, Lauren Elizabeth Lisauskas

Georgia Journal of International & Comparative Law

No abstract provided.

Causing A Sanctions Violation With U.S. Dollars: Differences In Regulatory Language Across Ofac Sanctions Programs, Christine Abely

Georgia Journal of International & Comparative Law

No abstract provided.

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

Constraining Strickland, Michael Cicchini

Texas A&M Law Review

When a convicted defendant pursues an ineffective assistance of counsel (“IAC”) claim on appeal—for example, by alleging that the defense lawyer failed to call an important witness at trial—the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.

The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the …

Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr.

Faculty Scholarship

This article is about ethics-focused, law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two).

The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to …

Does Bail Reform Increase Crime? An Empirical Assessment Of The Public Safety Implications Of Bail Reform In Cook County, Illinois, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

Recently bail reform issues have been in the news across the country, as concerns about fair treatment of defendants and possible public safety risks from expanding pretrial release have collided. These issues involve important empirical questions, including whether releasing more defendants before trial leads to additional crimes. An opportunity to investigate this public safety issue has developed in Chicago, our nation’s third largest city. There, the Office of the Chief Judge of the Cook County Courts adopted new bail reform measures in September 2017 and reviewed them empirically in May 2019. Cook County’s Bail Reform Study concluded that the new …

Jury Nullification: The Current State Of The Law, Louisa Heiny

Utah Law Faculty Scholarship

In 2018, the Utah legislature considered a proposed bill that would have explicitly granted jurors the right to nullify in criminal cases. This research, done in preparation for committee testimony, contains the most up-to-date law on the topic. It includes a fifty-state survey on whether juries in various jurisdictions are (1) given the right to consider the possible sentencing penalty before rendering a verdict; (2) told they may disregard the law; or (3) instructed on the right to nullify. Additionally, the research includes fifty-state survey data on whether judges may lie to juries about the right to nullify, and how …

Republican Attorneys General Association V. Las Vegas Metropolitan Police Department, 136 Nev. Adv. Op. 3 (Feb. 20, 2020), Nicholas Hagenkord

Nevada Supreme Court Summaries

The Court determined that (1) the district court did not err in denying appellant Republican Attorneys General Association’s (RAGA) petition for a writ of mandamus under the Nevada Public Records Act (NPRA) seeking bodycam footage regarding juveniles and former State Senator Aaron Ford’s interactions with police; and (2) the district court abused its discretion in denying RAGA’s request for other requested records by not assessing whether these records contain any nonconfidential material.

In Re Cook And The Franklin Proceeding: New Door, Same Dilapidated House, Christopher Hawthorne, Marisa Sacks

Loyola of Los Angeles Law Review

The California Supreme Court’s decision in In re Cook was supposed to bring about a sea change in the way trial courts conduct Franklin mitigation hearings for youthful offenders. In fact, while Cook changed the procedure for initiating a post-conviction Franklin proceeding, little else has changed, including the lack of agreement among attorneys concerning best practices in these proceedings, and a less than less-than-enthusiastic response from the criminal defense bar. Absent any guidance from higher courts, the Franklin proceeding is limited by the personal and institutional energies and preferences of judges, prosecutors, public defenders and private defense counsel. The authors …

Making Constitutional Sense: A Modal Approach To California's Proposition 66, Alan Romero

Loyola of Los Angeles Law Review

For years, the California Supreme Court has adopted a deferential posture when reviewing state constitutional challenges to a ballot initiative. The decision in Briggs v. Brown underscored the degree to which courts are willing to avoid striking down ballot initiatives on constitutional grounds, such as by broadly construing the initiative’s language to avoid constitutional problems. In construing the language of Proposition 66 to avoid separation of powers problems, however, Briggs effectively re-interpreted central pillars of Proposition 66 in ways rendering it unrecognizable to Californians who cast votes for and against the initiative. Such recasting of ballot initiatives raises fundamental jurisprudential …

People V. Buza: A Step In The Wrong Direction, Emily R. Pincin

Loyola of Los Angeles Law Review

No abstract provided.

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Brief Of Nat’L Assoc. Of Crim. Defense Attorney & Nat’L Assoc. Of Fed’L Defenders As Amicus Curiae, Pereida V. Barr, No. 19-438 (U.S.) (Feb. 2020)., Jenny Roberts

Amicus Briefs & Court Filings

Brief of Nat’l Assoc. of Crim. Defense Attorney & Nat’l Assoc. of Fed’l Defenders as Amicus Curiae, Pereida v. Barr, No. 19-438 (U.S.) (Feb. 2020).

The Municipal Pardon Power, Hayato Watanabe

Michigan Law Review

At the state and federal levels, the pardon power can be used to restore the dignity and legal rights lost by a criminal conviction. Unfortunately, those facing similar consequences from municipal convictions may not have access to a pardon. Although clemency is exceedingly rare at any level of government, municipal defendants face a unique structural problem that deprives them of the possibility of a pardon. Specifically, many cities have simply failed to create a local clemency power. This Note argues that the authority to grant pardons for municipal offenses is part of the toolbox of powers provided to cities through …

Overdue Justice: People V. Valenzuela And The Path Toward Gang Prosecution Reform, Ryan Nelson

Loyola of Los Angeles Law Review

No abstract provided.

Production, Not Dependence: The Metaphysics Of Causation And Its Role In Explanation, Responsibility, And The Law, Yuval Abrams

Dissertations, Theses, and Capstone Projects

Causation is production, not dependence. It is not merely a matter of how two facts or events covary, but about what underlies that covariation. Furthermore, causation is unified (not fragmented or plural) and is a natural relation (in the world). To cause is to make something happen, to generate. The causal nexus (the web of causal influence) consists entirely of productive positive causes. With these fixed, the (causal) dependence relations are determined.

Dependence belongs to the theory of explanation. Causal dependence is an explanatory notion: A causally explains B, in virtue of a causal relation between cause C and effect …

On Mandatory Criminal Sentences, Legislative Interpretation, And The Prospective Application Of The Law: A View From Singapore, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

Cana court find that a criminal sentence is mandatory under the penal legislation butchoose, exceptionally, to apply that finding only to future cases? This raisesan interesting question on the prospective application of a correctconstruction of legislation, requiring consideration of difficult issuessurrounding not just the temporal application of the law but also theprotection of the interests belonging to all citizenry, including convictedpersons. Recent decisions in Singapore and elsewhere provide an opening for amore detailed inquiry to be undertaken.

Kill Me Through The Phone: The Legality Of Encouraging Suicide In An Increasingly Digital World, Sierra Taylor

BYU Law Review

No abstract provided.

Law School News: 'Injustice Dehumanizes Everyone It Touches' 1-31-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The 15th Annual Rev. Dr. Martin Luther King, Jr. Celebration Keynote Address 1-28-2020, Roger Williams University School Of Law, Michael M. Bowden, Andrea Hansen

School of Law Conferences, Lectures & Events

No abstract provided.