Criminal Law Commons^™

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Fordham Law Review

    Focusing on criminal law and procedure in particular, this Article seeks to expose various tensions in critical race theorizing and progressive theorizing more broadly, offer some suggestions for a unifying methodology of critical criminal law analysis, and discuss where empirical study might fit into this new program. Progressive (critical race and feminist) theorizing on criminal law is not only subject to the competing frames of critique and formalism, it also exists within an overarching American criminal law culture that can eclipse both concerns over rights violations and structural injustice. The U.S. penal system has become a “peculiar institution” and a …

Taser Time: Electroshock Injustice Coming Soon To Athens-Clarke County, Donald E. Wilkes Jr.

Popular Media

On Sunday, Apr. 19, 2015, an article in the daily newspaper in Athens announced that Athens-Clarke County Police have already received a shipment of 145 tasers and will soon begin using them on the citizenry of this county.

Although taser electroshock devices are technically classified as nonlethal weapons, this means only that their purpose is to avoid fatalities, not that they are incapable of resulting in fatalities. Use of a nonlethal weapon may and sometimes does result in death or serious injury. In recent years, at least 600 Americans, perhaps as many as 1,000, have died suddenly, unexpectedly, or shortly …

Should The American Grand Jury Survive Ferguson, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

Beginning To Learn How To End: Lessons On Completion Strategies, Residual Mechanisms, And Legacy Considerations From Ad Hoc International Criminal Tribunals To The International Criminal Court, Dafna Gozani

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

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

Faculty Publications

The American military is in a well-publicized struggle to address its sexual assault problem. Critics say that those in the military who run the military justice system have a bias against the victims in these cases, where that bias is likely related to some form of sexism.

This article explores that problem and offers a social psychology explanation that supports the critics' position. This article explains the cognitive process that people use to solve these legal problems and then highlights a serious flaw in that process – the use of inaccurate rape schemas. This article focuses on two potential groups …

The Mentally Ill Who May Kill Go Unreported Still: Exploration Of Potential Nevada Nics Reporting Reform, Craig D. Friedel

Nevada Law Journal

No abstract provided.

Centralized Prosecution: Cross-Designated Prosecutors And An Unconstitutional Concentration Of Power, Haley White

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

Free Will Is No Bargain: How Misunderstanding Human Behavior Negatively Influences Our Criminal Justice System, Sean Daly

Nevada Law Journal

No abstract provided.

Suffocated Habeas Corpus And Merciless Clemency In The Execution Of Warren Hill, Donald E. Wilkes Jr.

Popular Media

On Tuesday, Jan. 27, 2015, the state of Georgia executed Warren Lee Hill, Jr. by lethal injection at the state prison in Jackson. This state unconstitutionally wielded its most dangerous and irreversible power, the power to kill. A prisoner with significantly sub-average intellectual functioning, a 54-year old man with the mind of a boy, was strapped down and killed in flagrant violation of a provision of the Bill of Rights intended to maintain human dignity.

This article discusses capital punishment against intellectually disabled individuals and how the erosion of habeas corpus at the Federal and state level and the abandonment …

Cooperative (And Uncooperative) Federalism At Tribal, State, And Local Levels: A Case For Cooperative Charging Decisions In Indian Country, Danna R. Jackson

Montana Law Review

No abstract provided.

Indemnification As An Alternative To Nullification, Robert A. Mikos

Montana Law Review

No abstract provided.

The Need To Criminalize Revenge Porn: How A Law Protecting Victims Can Avoid Running Afoul Of The First Amendment, Adrienne N. Kitchen

Chicago-Kent Law Review

Revenge porn occurs when someone posts sexually explicit images of their former paramour on the web, often with contact information for the victim’s work and home. There are thousands, perhaps tens of thousands, of victims. Victims lose or quit their jobs; they are harassed by strangers; some change their name or alter their appearance. Some victims resort to suicide; others are stalked, assaulted, or killed. Civil suits fail to remove the images or deter perpetrators. Current criminal laws are insufficient in several common instances. These shortcomings mean there is a need to criminalize revenge porn.

Revenge porn is obscene and …

Mug Shot Disclosure Under Foia: Does Privacy Or Public Interest Prevail?, Kathryn Shephard

Northwestern University Law Review

No abstract provided.

Public Lawyers And Marijuana Regulation, Sam Kamin, Eli Wald

Sturm College of Law: Faculty Scholarship

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution …

The Life Of Crimmigration Law, César Cuauhtémoc García Hernández

Sturm College of Law: Faculty Scholarship

This short essay introduces a collection of articles that arose from the Denver University Law Review’s symposium Crimmigration: Crossing the Border Between Criminal Law and Immigration Law, held in February 2015 at the University ofDenver Sturm College of Law. The essay borrows heavily from the Epilogue to my book Crimmigration Law.

Panel On Problematizing Assumptions About Gender Violence (Transcript), Rashmi Goel, Tamara Love, Elizabeth Macdowell, Adele Morrison

Sturm College of Law: Faculty Scholarship

Transcript of a Panel session at the CONVERGE! Conference on problematizing assumptions about gender violence.

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

Is America Becoming A Nation Of Ex-Cons?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Recent rates of mass incarceration have become a concern, but those rates are only part of the challenge facing (and posed by) the American criminal justice system. An estimated 25% of the U.S. adult population already has a criminal record and, with new felony convictions churning out at a rate of a million per year, America is well on its way to becoming a nation of ex-cons. Already, the ex-offender class is the nation’s biggest law-defined, legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is …

Culpability And Modern Crime, Samuel W. Buell

Faculty Scholarship

Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …

The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding

Faculty Scholarship

Policymakers have often been explicit in expanding statutory rape laws to reduce teenage pregnancies and live births by teenage mothers, often with the goal of reducing associated welfare outlays. In this paper, we explore whether expansions in such laws are indeed associated with reductions in teen birth rates. In order to codify statutory-rape-law expansions, we use a national micro-level sample of sexual encounters to simulate the degree to which such encounters generally implicate the relevant laws. By codifying statutory-rape laws in terms of their potential reach into sexual encounters, as opposed to using crude binary treatment variables, this simulation approach …

A Cost-Benefit Analysis Of The Federal Prosecution Of Immigration Crimes, Kit Johnson

Faculty Articles

Immigration crimes are the most prosecuted federal crimes in America. This Article examines the benefits of the federal prosecution of immigration crimes (training, deterrence, and signaling/expression) and balances those benefits against the costs of such prosecutions (court- house costs, alternative prosecution, and incarceration). I conclude that deportation immediately following a conviction for an immigration crime appears to capture the key benefit of this system (signaling/expression) while alleviating its greatest expense (incarceration).

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

UF Law Faculty Publications

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are …

The Inalienable Right To Stand Your Ground, Joshua Prince, Allen Thompson

St. Thomas Law Review

This Article seeks to open a dialogue about an individual's inalienable Right to Self-Defense and the interplay between that Right and Stand Your Ground doctrines. In Section II, this Article will present an overview of what, precisely, a Stand Your Ground statute actually encompasses and permits, as many misconceptions have arisen as to the effect of a Stand Your Ground law. Due to the position many political groups have taken, as well as inaccurate news reporting by the media, there is a mistaken belief that Stand Your Ground laws allow a shooter to become "judge, jury, and executioner." In Section …

Doin' Time For An Unproven Crime: The Problem Of Unpreserved Evidence Sufficiency Issues In Criminal Appeals, Richard Sanders

St. Thomas Law Review

Sections I and II of the article lay out the general principles of the preservation rule and its fundamental-error exception. Section III discusses the Florida cases that have wrestled with the problem of unpreserved sufficiency issues in criminal cases. The problem in the cases-seen in F.B. and in the pre-F.B. district court cases-is that Florida courts do not say that all valid-but-unpreserved sufficiency issues should be remedied as fundamental error. This means there will be some cases where the evidence in the record fails to establish all the elements of the crime of conviction but the court will affirm because …

Better The Mob And The Ku-Klux: A History Of The Law Of Search And Seizure In Florida, Milton Hirsch

St. Thomas Law Review

As late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, "whether the [Fourth Amendment] protection against 'unreasonable searches and seizures' is violated. In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. That Professor Frankfurter made …

The Prior Convictions Exception: Examining The Continuing Viability Of Almendarez-Torres Under Alleyne, Meg E. Sawyer

Washington and Lee Law Review

No abstract provided.

Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan

Scholarly Works

In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional …

Comment On The Prior Convictions Exception: Examining The Continuing Viability Of Almendarez-Torres Under Alleyne, Kevin Flynn

Washington and Lee Law Review

No abstract provided.