Criminal Law Commons^™

Wellman V. State: Confusing The Standard Of Excusable Neglect, Andrew L. Black

Maine Law Review

In Maine, as in most other states, a person convicted of a criminal offense is entitled to state post-conviction review upon proper filing of a petition. The Maine Rules of Criminal Procedure establish deadlines for such a filing and for the responsive answer by the State. Application for an enlargement of time in which to respond requires the State to show cause. If, however, the State makes this application after the initial period for response, the Rules impose a much stricter standard—a showing of “excusable neglect.” In Wellman v. State the Maine Supreme Judicial Court, sitting as the Law Court, …

Wellman V. State: Confusing The Standard Of Excusable Neglect, Andrew L. Black

Maine Law Review

In Maine, as in most other states, a person convicted of a criminal offense is entitled to state post-conviction review upon proper filing of a petition. The Maine Rules of Criminal Procedure establish deadlines for such a filing and for the responsive answer by the State. Application for an enlargement of time in which to respond requires the State to show cause. If, however, the State makes this application after the initial period for response, the Rules impose a much stricter standard—a showing of “excusable neglect.” In Wellman v. State the Maine Supreme Judicial Court, sitting as the Law Court, …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

The Dichotomy Between Overcriminalization And Underregulation, Ellen S. Podgor

American University Law Review

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the …

Rewarding Bad Behavior In Initial-Review Collateral Proceedings: Teague Says Yes, Due Process Says No, Bethany Callahan

American University Law Review

For centuries, criminal defendants have had the opportunity to challenge their convictions with a writ of habeas corpus. The Founding Fathers described the writ as a path to liberation for those imprisoned without sufficient cause. It is a critical safeguard of individual freedom against lawless state action in criminal proceedings. However, with every safeguard comes a loophole.

The finality of state court decisions is revered in the American criminal justice system. It is no surprise, then, that the Supreme Court has approached the issue of whether to retroactively apply new laws to cases already finalized on direct review with trepidation. …

Is Solitary Confinement A Punishment?, John F. Stinneford

UF Law Faculty Publications

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding …

How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus

St. Thomas Law Review

My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …

Strengthening American War Crimes Accountability, Geoffrey S. Corn, Rachel E. Vanlandingham

American University Law Review

The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform.

This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

University of Denver Criminal Law Review

No abstract provided.

Deferred Prosecution Agreements In Singapore: What Is The Appropriate Standard For Judicial Approval, Eunice Chua, Benedict Wei Qi Chan

Research Collection Yong Pung How School Of Law

Originating from the US, deferred prosecution agreements (“DPAs”) have made their way to the UK through the Crime and Courts Act 2013 and Singapore through the Criminal Justice Reform Act 2018. The Singapore model for approval of DPAs draws heavily from the UK and both require proof to a court that DPAs are in the “interests of justice” and that their terms are “fair, reasonable and proportionate” before DPAs can be approved. This paper considers the theoretical basis for the court’s approval of DPAs, critically examines the application of the tests for approval of DPAs in the UK and considers …

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Multiple Foster Care Placements Should Be Considered A Mitigating Factor In Criminal Proceedings, Daniel Pollack, Khaya Novick Eisenberg Dr., Amanda Dolce Esq.

Ohio Northern University Law Review

No abstract provided.

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

What Am I Really Saying When I Open My Smartphone: A Response To Prof. Kerr, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

In his forthcoming article in the Texas Law Review, Compelled Decryption and the Privilege Against Self-Incrimination, Orin S. Kerr addresses a common question confronting courts. If a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination?

To answer this question, Kerr appropriately looks by analogy to existing Fifth Amendment case law as applied to document subpoenas, the “act of production” doctrine, and its mysterious cousin, the “foregone conclusion” doctrine. From these materials, he gleans a …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Journal Articles and Book Chapters

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, …

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article argues that police disciplinary appeals serve as an underappreciated barrier to officer accountability and organizational reform. Scholars and experts generally agree that rigorous enforcement of internal regulations within a police department promotes constitutional policing by deterring future misconduct and removing unfit officers from the streets. In recent years, though, a troubling pattern has emerged. Because of internal appeals procedures, police departments must often rehire or significantly reduce disciplinary sanctions against officers who have engaged in serious misconduct. Little legal research has comprehensively examined the appeals process available to officers facing disciplinary sanctions. By drawing on a national dataset …

---

Go to article

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

The Left's Law-And-Order Agenda, Aya Gruber

Publications

No abstract provided.

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Possibilities Of Comparative Criminal Procedure In Reforming And Modernizing The Judicial And Legal System Of Uzbekistan, A.R. Akilov, S.D. Alimova

Review of law sciences

In this article, the author attempted to reveal the possibilities of a new direction of legal science, emerging not only in Uzbekistan, but also in the entire post-Soviet space – comparative criminal procedural law, which can be used at the present stage of reforms and changed in Uzbekistan in the field of justice. In particular, the comparative criminal procedure law can successfully, on the basis of the proven experience of the most developed democratic countries, solve many tasks identified in the field of justice recently adopted. Development strategy on five priority directions of the Republic of Uzbekistan for 2017–2021. These …

Fall 2017 Symposium: The Challenge Of Crime In A Free Society: Fifty Years Later, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

My longstanding interest in the Johnson Crime Commission traces back to my earlier scholarly work on the history of criminal law reform movements, going back to the progressive criminal justice reform agenda in the early twentieth century and the activities of private law-reform coalitions and government-sponsored crime commissions during the interwar period, including the Wickersham Commission and the American Law Institute's various model code projects. This research eventually led me to the Johnson Commission, the subject of this Symposium.

Cook's Field Guide To Prosecution In Georgia, Alan A. Cook

Books

In this practical guidebook former district attorney and director of the University of Georgia's School of Law Prosecutorial Justice Program Alan Cook shares his personal wisdom and advice gathered from his decades of experience into a single volume. The handbook includes introductions to each chapter topic, plus both quick and detailed reference sections on all aspects of criminal law and procedure. It also includes useful appendices with step-by-step practice guides for how to perform specific prosecutorial tasks (such as how to take a guilty plea). Law student testimonies from now seasoned attorneys at the start of the book indicate the …

Trammel V. United States: Bad History, Bad Policy, And Bad Law, Michael W. Mullane

Maine Law Review

In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment …