Criminal Law Commons^™

Countermajoritarian Criminal Law, Michael L. Smith

Faculty Articles

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

The Prosecutor In The Mirror: Conviction Integrity Units And Brady Claims, Lissa Griffin, Daisy Mason

Elisabeth Haub School of Law Faculty Publications

In Brady v. Maryland, the Supreme Court held that a prosecutor has a due process obligation to disclose exculpatory evidence that is material to guilt or punishment. The failure to fulfill this duty is particularly insidious because it bears directly on both whether an innocent defendant may have been convicted as well as on whether the adjudicatory process was fair. The failure to disclose exculpatory evidence has been characterized as “epidemic” and has been documented to have made a major, outsized contribution in cases that resulted in exonerations. It is not surprising, then, that conviction integrity units in prosecutor’s offices …

Addressing The Inevitability Of Race In The Doj’S Enforcement Of The Pattern-Or-Practice Initiative, Joshua Chanin

Loyola University Chicago Law Journal

Section 14141 of the 1994 Crime Act empowers the U.S. Department of Justice (DOJ) to investigate and drive reform of local law enforcement agencies found to have engaged in a pattern or practice of misconduct. During the Trump administration, the DOJ willfully allowed its powers under this section to lie dormant, despite a number of high-profile incidents of police violence against Black Americans. Active enforcement of Section 14141 affords the federal executive branch significant opportunities to promote lawful policing. Using its pattern-or-practice authority, the DOJ has guided dozens of law enforcement agencies through a process designed to remedy systemic unlawful …

State V. Reisner, 253 A.3d 1273 (R.I. 2021), David Tice

Roger Williams University Law Review

No abstract provided.

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Senseless Sentencing: The Uneven Application Of The Career Offender Guidelines, Christopher Ethan Watts

Washington and Lee Journal of Civil Rights and Social Justice

Federal appellate courts are currently split on the definition of “controlled substance” in the career offender guideline, with one side using federal law to define the phrase, and the other side allowing standalone state law offenses to trigger the guideline. Allowing state law to define the phrase allows countless substances Congress never intended to penalize to be able to trigger one of the most severe penalties in the Sentencing Guidelines. This Note assesses the landscape of the circuit split and analyzes the arguments for and against federally defining “controlled substance offense.” This Note then proposes a novel way to resolve …

As Fires Blaze Through California, Could They Blaze A New Path For Incarcerated Individuals: A Model For Back-End Abolition, Jacquelyn Kelsey Arnold

Washington and Lee Journal of Civil Rights and Social Justice

This Note provides a critique on the current system of prison labor through the lens of the California wildfires and the lack of inmate labor due to early release in the wake of COVID-19. This Note provides an overview of the relevant history of the Thirteenth Amendment, contextualizes mass incarceration as a product of the “War on Drugs” in the United States, and consequently, discusses the significant and dramatic expansion of the prison industrial complex and the use of prison labor as a growing source of production labor. It concludes with a recommendation for a provisional back-end abolition model that …

Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahy

UF Law Faculty Publications

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED …

Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, E. Lea Johnston

UF Law Faculty Publications

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …

Inconceivability, Horror, And The Mercy Seat, Thomas Simmons

Faculty Publications

In an ordinary home in Huron, South Dakota-sometime in the very early morning hours of Sunday, April 5, 1987-a young girl was murdered in her crib. By March of the next year, her mother, Debra Jenner, had been convicted of second-degree murder. She was sentenced to life in prison. Although she became eligible for parole in 2003 after Governor Janklow commuted her sentence, her applications for discretionary parole were consistently denied. She remained incarcerated until last year, when she was finally granted parole. This essay embarks on a retelling of Debra Jenner's trial, her subsequent post-conviction proceedings, and her numerous …

Hb 1134: Amendments To The Georgia Street Gang Terrorism And Prevention Act, Alex Norton, Sam Collier

Georgia State University Law Review

The Act amends the Georgia Street Gang Terrorism and Prevention Act to provide the attorney general with concurrent authority to prosecute criminal gang activity alongside local prosecuting attorneys in Georgia. Modeled after a similar act that created concurrent authority for the attorney general to prosecute human trafficking crimes, the Act seeks to enhance the government’s investigation and prosecution of gang crimes in the state by making the effort more corroborative, coordinated, and multi-jurisdictional.

Sb 441: Criminal Records Responsibility Act, Jacob Kanter, Greg Mercer

Georgia State University Law Review

The Act contains two distinct components. First, the Act reforms Georgia’s criminal records reporting system. Second, the Act grants the Georgia Bureau of Investigation authority to initiate investigations into election fraud.

State V. Hampton-Boyd, 253 A.3d 418 (R.I. 2021, Brian W. Murphy

Roger Williams University Law Review

No abstract provided.

How Do You Value A Victim? Victim Impact Statements In Military Sexual Assault Trials, Chris Cox

Scholarly Works

This Article examines a timely and important issue — the use of Victim Impact Statements (VIS) in criminal trials and, more specifically, in military courts-martial. The right for victims of offenses to provide VIS has existed in the United States for approximately three decades. However, the military’s implementation of similar rights for victims has languished, with the advent of the right for a victim to provide a VIS having been implemented only within the last decade. Relying on legal precedent in the form of appellate case decisions and qualitative assessments of trial court records, this article explores the current state …

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

Improper Distinction Under The Ada Leads To An Irrational Outcome: Favoring One Life Over Another, Daniel Frederick Parise

Touro Law Review

Society has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.

Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes …

Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel

Touro Law Review

18 U.S.C. § 922(g)(4) imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing, or possessing a firearm, regardless of an extended passage of time, or a finding that the individual is unlikely to pose a danger to themselves or the public. Three circuits have created a split concerning the constitutionality of this statute. The Third Circuit held in Beers v. Attorney General United States that those involuntarily committed were outside of the scope of the Second Amendment; therefore, the § 922(g)(4)’s categorical ban is constitutional. Next, the Ninth Circuit in Mai v. …

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …

“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray

Touro Law Review

There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …

Access To Counsel For Defendants In Lower Criminal Courts, Alyssa M. Clark, Andrew L. B. Davies, Karise M. Curtis

Other Publications

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants' financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Dispensing Reparations For Marijuana Convictions, Michelle Mazzola

Journal of Race, Gender, and Ethnicity

No abstract provided.

Put Down The Phone! The Standard For Witness Interviews Is In-Person, Face-To-Face, One-On-One, Sean O'Brien, Quinn O'Brien, Dana Cook

Faculty Works

Professor and capital defense attorney Sean O’Brien, private investigator Quinn O’Brien, and mitigation specialist Dana Cook team up in this article to explain why the standard for competent defense investigation requires face-to-face, one-on-one, culturally competent client and witness interviews, and why short cuts to investigation, such as telephone calls or remote video links, are counter-productive, prone to failure, and constitute substandard work. Although the primary focus of this article is on standards that apply to capital mitigation work, the problems created by remote witness interviews are not unique to death penalty work; there are persuasive arguments and authority that the …

Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde

Journal of Criminal Law and Criminology

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …

Is Juvenile Probation Obsolete? Reexamining And Reimagining Youth Probation Law, Policy, And Practice, Patricia Soung

Journal of Criminal Law and Criminology

The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried.¹ But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important …

Qualified Immunity And Unqualified Assumptions, Teressa E. Ravenell, Riley H. Ross Iii

Journal of Criminal Law and Criminology

Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense -- even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair …

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …