Criminal Law Commons^™

How To Stop Mass Shootings Without Violating The Second Amendment: Designing Regulations To Prevent Acts Of Mass Violence That Pass The 6:3 History And Tradition Test, Robert D'Alessandro

Cardozo Journal of Equal Rights & Social Justice

The article proposes that states can constitutionally implement ammunition possession limits to reduce mass violence by aligning such laws with the "history and tradition" test established by the current Supreme Court. It argues that modern caps on ammunition are analogous to early American gunpowder restrictions, which were enacted for public safety to prevent catastrophic explosions in populated areas.

Data Sanctuaries: Rethinking Technological Progress To Preserve Federalism, Nathan S. Lee

Cardozo Journal of Equal Rights & Social Justice

Why are sanctuary states and cities in the present moment largely failing to protect immigrants and other vulnerable people from federal enforcement of an agenda based on mass deportation and fear? While federalism was painted during the Civil Rights Era as a weapon of states to protect policies of discrimination and segregation, federalism was also a powerful tool used by Northern States before the Civil War to resist Southern and federal laws enabling the dehumanizing capture and transport offugitive slaves (or suspected fugitive slaves). What has changed in the passing years to make federalism seem like such a thin concept, …

Affirmatively Misled: The Commutation Instruction That Distorted Louisiana’S Death Penalty, G. Ben Cohen

Akron Law Faculty Publications

In 1997, Louisiana voters amended the state constitution to mandate that capital juries be instructed on the governor’s power to commute life and death sentences. This amendment, urged by the Louisiana District Attorneys Association, followed a Louisiana Supreme Court ruling that found an earlier clemency instruction violated the state constitution.     The instruction was fundamentally false. Louisiana governors, it turns out, lacked the unilateral authority to commute sentences; such actions require a favorable vote from the Parole Board. This reality became starkly clear in 2023, when the clemency petitions of fifty-six condemned prisoners—many sentenced by juries affirmatively given this instruction—were terminated …

An Insidious Interstice: Understanding Cognition And Language Behaviour Through The Eyes Of Juvenile Justice Professionals, Anne M. Perrotti, Allison T. Chappell, Tancy Vandecar-Burdin

Human Movement Studies & Special Education Faculty Publications

Introduction

Despite evidence suggesting language and cognition deficits are prevalent for justice involved youth, little research explores how juvenile justice personnel experience language and cognition behaviours in the youth they serve.

Aims

This qualitative study explored how juvenile justice personnel understand language and cognition skills and deficits in justice involved youth.

Methods

Twenty-two U.S. juvenile justice professionals participated in individual, semi-structured interviews. Questions focused on individual understanding of receptive language, expressive language, social communication, and cognition (i.e., problem-solving, predicting consequences and impulsiveness) in juveniles served. Using a phenomenological lens, transcripts were coded identifying themes and sub-themes of participant responses.

Results …

This Land Is Our Land: Creating Abortion Safe-Havens In Federal Enclaves Using The Nondelegation Doctrine, Callie Fucarino

American University Journal of Gender, Social Policy & the Law

In a post-Dobbs world, the legal status of abortion care is in the hands of the states. Healthcare providers and people seeking abortion care must either take legal risks or betray their morals and oath to care for their patients to follow the law in certain restrictive states. What remains in flux is the status of abortion rights on federal lands. There is currently no federal law that criminalizes abortion, but many states prohibit it. Within some states that have restricted abortion, there lie federal enclaves—certain specified land that the United States government owns, where federal law controls. At first …

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

Nonviolent Felony Offenders And The Second Amendment: Reexamining Categorical Disarmament Laws In Light Of Bruen And Rahimi, Nikolay Belardi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: The Second Amendment ensures that “the right of the people to keep and bear Arms, shall not be infringed.” In a country with more civilian-owned firearms than people—and more gun dealers than McDonald’s, Burger King, Subway, and Wendy’s locations combined—it is no surprise that Americans pride themselves on their right to bear arms. However, a majority of the American population favors stricter gun laws and regulations, a position that seems sensible given that mass shootings are an all-too-familiar occurrence in the United States. The enshrinement of the right to bear arms in the Constitution limits the laws and regulations …

Narcos Of The Caribbean: Addressing Transshipment Drug Trafficking Through Caribbean Ports, Manuel Muñoz-Repiso

FIU Law Review

Drug trafficking from source countries in South and Central America to other parts of the world is of growing concern as drug use increases globally. Driven by the region’s geographic proximity to source countries in South and Central America and weak antitrafficking infrastructure, drug traffickers have increasingly used routes through Caribbean ports to access target consumer nations. The use of Caribbean ports for transshipment trafficking has led to record homicide levels, corruption, and democratic backsliding. In response, Caribbean nations, other Western democracies, and international organizations have created numerous cooperative organizations and programs to reduce the number of drugs trafficked through …

Restorative Restitution, Lula A. Hagos

American University Law Review

How to best meet the needs of crime victims while also furthering the imperative of decarceration has long vexed advocates and scholars alike. This dilemma comes into sharp focus when one examines two developments in criminal procedure that, until now, have been analyzed separately: victim restitution and restorative justice.

Criminal restitution, the monetary payments ordered from defendants to victims, often fails both groups. Because most defendants are indigent, restitution obligations lengthen defendants’ involvement with the criminal legal system without delivering meaningful compensation to victims, making restitution more symbolic than restorative. At the same time, interest in restorative justice has surged …

Sauce For The Gander: The False Symmetry Of Myths And Stereotypes Against The Accused In Sexual Assault Trials, Janine Benedet

Dalhousie Law Journal

As sexual assault laws evolved to be expressed in sex-neutral language, so too have arguments relating to myths and stereotypes in the context of sexual offences. This article evaluates the argument that myths and stereotypes, traditionally a reflection of systemic discrimination against female complainants in rape trials, also operate against male accused. Understood correctly, this trend repackages anti-feminist backlash to early equality reform efforts, ultimately working to revive the belief that women’s accusations of sexual assault are often false. The Supreme Court of Canada’s decision in R v Kruk affirms that this historical context matters when it comes to claims …

Making The Punishment Fit: Individualization And Parity As Principles Of Proportionality, Sonia Anand Knowlton, Sylvia Rich

Dalhousie Law Journal

Proportionality is the fundamental principle of sentencing in Canada: a sentence must be proportionate to the gravity of the offence and the blameworthiness of the offender. In order for a sentence to be proportionate, the Supreme Court has stated that it must be individualized to the particular event and also that it must maintain parity with similar offences committed in similar circumstances. Parity tends to compare the relative severity of offences in the abstract, lending itself to the gravity analysis. Individualization, on the other hand, customizes the sentence to the individual’s culpability, lending itself to the blameworthiness analysis. But these …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Cardozo Law Review

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

Conspiracy And Social Movements, Steffen Seitz

Michigan Law Review

Conspiracy prosecutions of social movements are on the rise. From anti-“Cop City” protesters in Atlanta to pro-Palestinian protesters in California, prosecutors are increasingly wielding conspiracy law to suppress social movements. This development is troubling. Social movements have long served as vital engines of democratic self-governance; they crystallize issues, foster public discourse, and mobilize citizens. Yet conspiracy law endangers these movements— and thus democracy—by targeting what makes them work: public expression and social ties between activists.

This Article makes three significant contributions to our understanding of this threat. First, it demonstrates that a charge of conspiracy requires remarkably little—just the appearance …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

The Limits Of "Punishment", Benjamin Levin

Scholarship@WashULaw

“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue—much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction? What …

No Justice Without Transparency: The Case For A Broad Presumption Of Public Access To Court Documents, Taylor Quimby

FIU Law Review

This Comment argues that a broad presumption of public access to court  documents is essential to preserving the legitimacy and constitutional values  of the American legal system. Although the principle of public access is  rooted in common law and constitutional tradition, individual states differ in  how they approach transparency in the context of court documents. These  jurisdictional inconsistencies continue to gain significance, as the digital age  has completely transformed the way people consume information. The  increasing digitization of court records has heightened the need for consistent  and constitutionally grounded standards that preserve transparency while  adequately protecting legitimate privacy interests. Florida’s …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

Virtual Harm, Real Consequences: Constitutional Justifications For Criminalizing Ai-Generated Child Pornography, Adam Abdin

FIU Law Review

Advances in artificial intelligence (AI) have enabled the creation of hyper-realistic child sexual abuse images without any real child involved. These AI-generated depictions pose a unique challenge: they replicate the most pernicious form of pornography—child pornography—while potentially being claimed as “speech” immune from regulation. This paper argues that it is both constitutionally permissible and morally imperative to criminalize AI-generated child pornography. This article presents two doctrinal pathways to justify a ban. First, such content can be treated as unprotected speech under existing First Amendment exceptions. Courts have long held that child pornography and obscenity lie outside First Amendment protection, and …

Crypto Kleptocracy, W. Robert Thomas, Jeffery Y. Zhang

Michigan Law Review Online

Many Americans are worrying about whether they will soon be living in a postdemocracy autocracy. But in the meantime, they may already be living in a crypto-fueled kleptocracy. Less than one year into his second presidential term, Donald Trump has reportedly taken his wealth to new heights by embracing, both as a businessman and a politician, the crypto industry. Trump’s family businesses are involved in minting Trump-themed meme coins, creating America- themed stablecoins, and mining crypto assets—so successfully that most of Trump’s wealth is likely now from crypto, not real estate. All the while, the Trump Administration is rolling back …

When We Don’T Get Community Right In Restorative Justice Spaces: Cancel Culture And Failure To Transform, Aparna Polavarapu

Scholarly Works

This Article argues that community is a central but deeply misunderstood feature of restorative justice. Restorative justice asks us to understand harm as a break in relationship that creates obligations for the person harmed, the person who caused harm, and the community. Community is theorized to play a key role in working towards reintegration and social change, both goals of restorative justice. Yet in practice, community is often misused or underused in ways that weaken these goals. Practitioners are observing an increase in cancel culture actions by groups that claim affinity with restorative and transformative justice. However, by weaponizing the …

The Punishment Paradox, Steven Arrigg Koh

Faculty Scholarship

What does criminal punishment do? Across centuries of criminal legal thought, a shared answer persists: punishment incapacitates the wrongdoer. And yet punishment sometimes yields its opposite. Paradoxically, punishment sometimes becomes a rallying point-expanding community identification and solidarity around the defendant. This Article shows this punishment paradox using the 2023-24 prosecutions of President Trump and recent and historical case examples-from Luigi Mangione to Karen Read to Rosa Parks. By arguing that criminal law can generate solidarity rather than stigma, the Article both rethinks foundational theories of punishment and reconsiders the role of criminal law in democratic politics. Such an approach transcends …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …

The New Neccesity, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

According to the U.S. Supreme Court, cities are free to criminalize homelessness. The 2024 case City of Grants Pass v. Johnson is the most important homelessness case in decades and was a significant blow to advocates for the unhoused. The conservative majority rejected the idea that city ordinances criminalizing sleeping in public amounted to cruel and unusual punishment insofar as they penalized status. There is no sidestepping the loss. But within the faint glow of the embers of the oral argument and of the decision itself, there is the possibility that a new understanding of necessity, supported by the same …

Criminal Law: "Legally Magic" Words: The Accessibility Of Fifth Amendment Rights, Kate Weisburd

The Judges' Book

A basic but underappreciated problem pervades Fifth Amendment doctrine (including Miranda v. Arizona): people may know, in a broad sense, that they have the right to remain silent and to counsel, yet a deep disconnect exists between what ordinary people think is required to invoke those rights and what courts demand. Settled Supreme Court case law requires that the right to counsel and silence must be invoked clearly and unambiguously. In practice, those requirements have produced a body of law in which ordinary language and conduct often does not suffice to invoke either right, simply because the suspect did …

Criminal Law: Secretive Sheriffs: Opacity And Variation In California’S Jail Responses To Covid-19, Aparna Komarla, Hadar Aviram

The Judges' Book

Agnotology, a term coined by Robert Proctor and Iain Boal, is the study of culturally produced ignorance, which assumes that gaps in knowledge are not coincidental but rather reflect social values and interests. In this Chapter, we apply this context to a domain in which information gaps have life-or-death consequences: healthcare in county jails, and more particularly, the availability, or lack thereof, of COVID-19 data from California’s fifty-eight county jail systems.

Our argument is twofold: First, that public ignorance about jail healthcare conditions is not accidental but is instead the product of weak state oversight and a culture of noncooperation …

Reproductive Wrongful Convictions: The Making Of "Unfit" Mothers, Valena Beety

Articles by Maurer Faculty

This Article draws a straight line from wrongful convictions of women in the past to criminal charges based on pregnancy and parenting behaviors today. Faulty forensic evidence and biased evidence based on sex-stereotypes have, in combination, been used to convict innocent women, particularly in situations where an accident or health event was misconstrued to be a criminal act. Seventy-four percent of known exonerated women were wrongly convicted where no crime occurred. Similarly, in criminalizing pregnancy behaviors, police, medical personnel, or prosecutors erroneously label a non-criminal event, such as a miscarriage or stillbirth, as criminal. Criminal charges are being brought against …