Criminal Law Commons^™

Guns And Drugs, Benjamin Levin

Fordham Law Review

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

The Persistence Of Fatal Police Taserings, Part 2, Donald E. Wilkes Jr.

Popular Media

This article updates the author's previous article on the statistics on deaths resulting from police taserings.

Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.'Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in …

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

Popular Media

There is, newfound interest in obtaining accurate information about police use of force in this country. This means, among other things, that we need reliable statistics about police violence. We cannot address the problem of unlawful police violence unless we possess adequate statistical information about all police violence, lawful as well as unlawful.

This article explores the violence of police tasering and the statistics of this practice.

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

Expanding Public Safety In The Era Of Black Lives Matter, Nicole D. Porter

University of Miami Law Review

Traditional public safety responses to crime involve interactions with the criminal justice system. However, recent killings by police of unarmed black men, women, and children have led to a national dialogue on the fundamental strategy of public safety. The narrative of “Black Lives Matter” offers a new framework for policymakers, activists, practitioners, and other stakeholders to think about a public safety strategy that is not solely defined by arrests and admissions to prison. This essay provides an overview of evidence-based approaches for public safety interventions that exist outside of law enforcement interactions.

Environmental Crimes And Imprisonment: Does Prison Work To Prevent And Punish Environmental Criminals?, Rafael Wolff

Dissertations & Theses

Environmental degradation is a global problem. Humans need natural resources to survive and, as those resources are limited, humans’ use of these resources should respect a sustainable pace established by law. There are many approaches to addressing environmental degradation that do not honor the legal limitations and one of them is through criminal law. The question that is posed in this thesis is whether imprisonment, one of the most severe methods of punishment, is a suitable option to repress and prevent environmental crimes.

This thesis is divided in three chapters. The first chapter discusses why environmental crimes are relevant. It …

Criminal Defense Clinic, Legal Clinic Program

Course Descriptions and Information

This clinic focuses on the representation of indigent clients charged with misdemeanor criminal offenses in county courts in the Ninth Judicial Circuit of Florida. Students will represent low-income clients charged with misdemeanor criminal offenses from the surrounding community as well as those defendants appointed by the court who qualify for free legal services.

Evidence Of The Military's Sexual Assault Blind Spot, Eric R. Carpenter

Faculty Publications

In response to the American military's perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does. This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system. This study finds that this narrow military population endorses two constructs that are associated with the acceptance …

Conspiracy As Contract, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

This article considers the central concept of criminal conspiracy — the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how “agreement” in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting “mutual understanding” or “slight connection,” leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae Quinn, Eirik Cheverud

Journal Articles

This Article advances a simple claim in need of enforcement in this country right now: no person may be arrested for an alleged violation of civil, as opposed to criminal, law. Indeed, courts have long interpreted the Fourth Amendment as prohibiting arrest except when probable cause exists to believe that a crime has been committed and that the defendant is the person who committed the crime. However, in many places police take citizens into custody without a warrant for the non-criminal conduct of allegedly breaking civil laws. This unfortunate phenomenon received national attention in St. Louis, Missouri following the death …

Socializing The Subject Of Criminal Law? Criminal Responsibility And The Purposes Of Criminalization, Nicola Lacey

Marquette Law Review

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The Matthew Shepard And James Byrd, Jr., Hate Crimes Prevention Act: A Criminal Perspective, Meredith Boram

University of Baltimore Law Review

[H]ate crimes ... leave deep scars not only on the victims, but on our larger community. They weaken the sense that we are one people with common values and a common future. They tear us apart when we should be moving closer together. They are acts of violence against America itself.. . As part of our preparation for the new century, it is time for us to mount an all-out assault on hate crimes, to punish them swiftly and severely, and to do more to prevent them from happening in the first place. We must begin with a deeper understanding …

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

No abstract provided.

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

Attempting The Unintended: The Problems With Recognizing An Attempted Homicide Offense That Does Not Require Proof Of An Intent-To-Kill, Richard Sanders

St. Thomas Law Review

Start with a simple syllogism: (1) The mental element of the Florida "offense of criminal attempt" is an "inten[t] to commit [an] offense"; (2) it is logically impossible to intend to do something that one does not intend to do, such as intend to cause an unintended harm; so therefore (3) "[t]here is no such criminal offense as an attempt to achieve an unintended [harm]," because it is logically impossible to intend, and thus to attempt, to commit an offense that has an element of causing-unintended-harm. Call this the attempt logic. Most courts accept this logic as to homicide offenses, …

From The Sophisticated Undertakings Of The Genovese Crime Family To The Everyday Criminal: The Loss Of Congressional Intent In Modern Criminal Rico Application, Emily A. Donaher

St. Thomas Law Review

Due to the unmanageable development of organized crime in America, principally the growth of La Cosa Nostra, Congress enacted the Organized Crime Control Act of 1970. Through this Act, Congress intended to eliminate organized crime, by criminalizing not only the syndicate but also the activities in which it was engaged. Congress then passed the Racketeer Influenced and Corrupt Organizations Act (RICO), which was to preclude organized crime from infiltrating legitimate American businesses. Although Congress intended courts to construe the RICO statute liberally to combat organized crime, in some cases, American courts have taken this liberal construction too far. The RICO …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich George Mason University

Washington and Lee Law Review

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Faculty Articles

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices …

Police Suspects, Kate Levine

Faculty Publications

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Journal Articles and Book Chapters

This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

2015 Symposium: Wrongful Convictions: Science, Experience & The Law Keynote Panel Discussion, Mary Kelly Tate

Law Faculty Publications

The following is a minimally-edited transcript of the panel speakers from the 2015 Richmond Journal of Law and the Public Interest Symposium, Wrongful Convictions: Science, Experience and the Law held on October 29, 2015. Biographies of the speakers are included in the Introductory Remarks. None of the opinions of these persons are necessarily the opinion of their respective agencies or employers. They are not to be used nor will they be able to be used for any legally binding purpose regarding the speaker or any agency.

Moderator: Professor Mary Kelly Tate, Director, Richmond Institute for Actual Innocence

Panelists: Shawn Armbrust …

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …