Criminal Law Commons^™

Covid In Menard, Deandre Banks

JCLC Online

No abstract provided.

Pandemic Thoughts While On Lock, Kevin Dugar

JCLC Online

No abstract provided.

Following Data: The "Defund The Police" Movement's Implications For Elementary And Secondary Schools, Michael Heise, Jason P. Nance

JCLC Online

Nationwide calls to “Defund the Police,” largely attributable to Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” school resource officer (“SRO/police”) programs. To be sure, school districts’ SRO/police programs endure as a subject of persistent scholarly and public scrutiny, particularly relating to how a school’s SRO/police presence influences the school’s student discipline reporting policies and practices. How schools report student discipline and whether the process involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The “school-to-prison pipeline” research literature features two general empirical claims. One is …

Prosecutors And Mass Incarceration, Shima Baughman

Utah Law Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Legitimacy Matters: The Case For Public Financing In Prosecutor Elections, Rory Fleming

Washington and Lee Journal of Civil Rights and Social Justice

Money matters. Given the empirical data presented in this Article, it is fair to draw the assumption that a progressive prosecutor candidate’s viability depends much more on whether one or two billionaires support the candidate, especially George Soros. The Soros effect is undeniable for progressive DA candidates running in Democratic primaries, where it seems to be almost determinative for either victory or defeat. For criminal justice reformers interested in “progressive prosecution” as a way to end mass incarceration, it is crucial that this is acknowledged rather than suppressed. The better option is moving toward a model of public financing for …

Invisible Article Iii Delinquency: History, Mystery, And Concerns About “Federal Juvenile Courts”, Mae C. Quinn, Levi T. Bradford

Washington and Lee Journal of Civil Rights and Social Justice

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system. The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.

To date, most scholarship evaluating youth prosecution has focused on our country’s juvenile …

Habeas Corpus, Conditions Of Confinement, And Covid-19, Allison Wexler Weiss

Washington and Lee Journal of Civil Rights and Social Justice

Incarcerated individuals, worried about contracting the disease in prison without adequate healthcare and often serious health risks, have filed lawsuits challenging their incarceration in the age of COVID-19. Overall, very few have been successful. This virus has changed our world and the reality for those in prison. The traditional legal avenues available to incarcerated individuals to challenge their continued confinement are often ill-equipped to allow for comprehensive and expedited review. The author argues that during these unprecedented times, courts should recognize that the “duty to defend the Constitution” requires them to grant motions for habeas corpus by the most vulnerable …

Gps Tracking At The Border: A Mistaken Expectation Or A Chilling Reality, Kimberly Shi

Washington and Lee Journal of Civil Rights and Social Justice

In 2018, Matthew C. Allen, the Assistant Director for the Domestic Operations Division within the United States Department of Homeland Security, filed a declaration in United States v. Ignjatov describing a departmental policy allowing for the installation of a “GPS tracking device on a vehicle at the United States border without a warrant or individualized suspicion,” limited “to 48 hours.” While the Border Search Doctrine, which predates the Fourth Amendment, deems that no warrant is necessary at the border for most searches and seizures because of the government’s inherent power to control who or what comes within a nation’s borders, …

Moving The Needle: Two Promising Tools To Attack Arkansas’S Racial Disparity In Criminal Sentencing, Anastasia M. Boles

University of Arkansas at Little Rock Law Review

No abstract provided.

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood

LLM Theses

The retributive justification of Canadian criminal law contains several assumptions about human nature that conflicts with what neuroscience has established regarding human behavior and the function of rationality. Interdisciplinary discourse on this conflict between law and neuroscience has unnecessarily implicated the free will debate and is further stagnated by epistemic cultural differences between the two disciplines. To avoid these roadblocks, this thesis applies the methodological principles of pragmatic philosophy. Rather than asking which description of human nature is true, pragmatic inquiry focuses on the difference either would make in practice. This analysis reveals that retributive folk psychology in practice causes …

No Path To Redemption: Evaluating Texas’S Practice Of Sentencing Kids To De Facto Life Without Parole In Adult Prison, Lindsey Linder, Justin Martinez

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

Abstract forthcoming.

The Never-Ending Grasp Of The Prison Walls: Banning The Box On Housing Applications, Ashley De La Garza

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

Abstract forthcoming.

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman

Articles

No abstract provided.

The Curriculum Of The Carceral State, Alice Ristroph

Faculty Scholarship

No abstract provided.

Paying For The Privilege Of Punishment: Reinterpreting Excessive Fines Clause Doctrine To Allow State Prisoners To Seek Relief From Pay-To-Stay Fees, Kristen M. Haight

William & Mary Law Review

Across the country, the criminal justice system is becoming both more private and more expensive. Some prison systems have come to rely on private contractors for electronic monitoring, probation, pretrial services, and incarceration services. At the same time, criminal justice fees are exploding, including fees charged to inmates for their “room and board” while in prison. These fees, sometimes called “pay-to-stay,” are imposed at the state and county level, and how they are applied varies widely. Some take into account inmates’ ability to pay the fees, or the effect on their families. Some do not. Some only apply to prisoners …

Re: The Pretrial Risk Assessment-How New Jersey's Bail Overhaul Is Shaping Bail Reform Across The Country, Andrea Coppola

Cardozo Journal of Equal Rights & Social Justice

The note argues that cash bail systems disproportionately affect low-income and minority defendants, leading to unnecessary pretrial detention. It advocates for the adoption of risk-based algorithms, such as New Jersey's Public Safety Assessment (PSA), to determine pretrial release, promoting fairness and efficiency. The PSA uses nine factors, excluding socioeconomic elements, to assess flight risk and public safety. The note also highlights Alaska's tailored approach, demonstrating the effectiveness of such tools when adapted to specific state needs. It concludes that widespread adoption of these algorithms, with proper safeguards, could reduce incarceration rates and enhance justice system equity.

Medication-Assisted Treatment: Statutory Schemes & Civil Rights Implications, Melissa Koppel

Cardozo Journal of Equal Rights & Social Justice

The note argues that the denial of Medication-Assisted Treatment (MAT) to prisoners with opioid use disorder (OUD) violates the Americans with Disabilities Act (ADA) and the Eighth Amendment of the U.S. Constitution. It contends that states must implement MAT programs in prisons to comply with federal law, reduce recidivism, and improve public health outcomes. The analysis emphasizes that MAT is a medically recognized standard of care for OUD and that withholding it constitutes discrimination and cruel and unusual punishment.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

This Symposium comes at a critical juncture for America's prosecutors. One important question-"Is there room for a new kind of prosecutor?"- has already been answered. Self-styled "progressive prosecutors" are flourishing in jurisdictions across the country. The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be. One way this question will be answered is through the movement's influence on the many prosecutors who are open to reform but unlikely to adopt the "progressive" label or accompanying rhetoric. This Essay explores this theme by discussing, first, the rise of progressive prosecution …

The Changing Role Of The American Prosecutor, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The following is a November 2019 presentation to the Louisiana District Attorneys Association, Fall Meeting of Elected District Attorneys ("DA'). The invited presentation was part of an agenda that included remarks from the Governor of Louisiana and the Chief Justice of the Louisiana Supreme Court. The opinions expressed are solely those of the author. These remarks have been edited for clarity and brevity. Some discussion specific to Louisiana, as well as the speaker introduction, and exchanges with the audience during and after the talk are excluded. A short postscript follows the remarks.

"Toughen Up, Buttercup" Versus #Timesup: Initial Findings Of The Aba Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

"Practicing criminal law as a woman is like playing tackle football in a dress.” Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association’s Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in …

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce Green, Rebecca Roiphe

Articles & Chapters

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses the historical example to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

It Is Time To Get Back To Basics On The Border, Donna Coltharp

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

Abstract forthcoming.

Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule …

Konsep Kepemilikan Tanah Ulayat Masyarakat Adat Minangkabau, Fitrah Akbar Citrawan

Jurnal Hukum & Pembangunan

Land is a very important factor in the life of the people of Indonesia, especially in the environment of the West Sumatra customary law community, where most of its population depend their lives and livelihoods from the land. In West Sumatra, in reality there are still acknowledged lands in the customary law community whose management, use and use are based on the provisions of local customary law and are recognized by the residents of the customary law community as their communal land. Ulayat Land Minangkanbau in the concept of ownership includes in the narrow sense that it is in the …

Penerapan Asas Proporsionalitas Dalam Pemanfaatan Aset Negara Melalui Model Build Operate And Transfer/Bot, Anita Kamilah

Jurnal Hukum & Pembangunan

National development in infrastructure by utilizing state-owned assets is a priority of President Joko Widodo's administration in an effort to equalize people's welfare through ease of connectivity in all regions of Indonesia. The amount of Indonesia's foreign debt which reached Rp. 5,425 trillion as well as limited government funding in both the APBN and APBD, strived through collaboration with the private sector using the Build Operate and Transfer (BOT) model. For the government, infrastructure development through BOT provides benefits to be able to utilize state assets without having to spend funding, increase state revenue, and at the end of the …

Telaah Yuridis Terhadap Surat Edaran Kementrian Agraria Dan Tata Ruang No. 2/Se-Ht.02.01/Vi/2019, Nur Adhim, Siti Mahmudah, Kornelius Benuf

Jurnal Hukum & Pembangunan

The Agraria Basic Law (UUPA) regulates that legal subjects for land rights, including land with HGB status (Right to Build), are Indonesian citizens and legal entities established under Indonesian law and domiciled in Indonesia. A different thing happened when a Circular from the Ministry of Agraria and Spatial Planning (ATR) was issued, stating that the Partnership Alliance (CV) could apply for land rights in the form of HGB. The difference in the substance of these rules will be analyzed using normative juridical writing methods, using secondary data. This paper will explain the legal status of CV in Indonesia, Arrangement of …