Criminal Law Commons^™

Not All Violence In Relationships Is “Domestic Violence", Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

The article proceeds in four parts. Part I describes in more detail the work of Donileen Loseke, and Part II applies her methodology by taking stock of the constructs as they currently exist. Part III examines social science data available since Loseke published her study, demonstrating that the current construct reflects, in reality, only a subset of relationship violence and a subset of the people who experience it. Part IV examines whether the main service designed to help people experiencing relationship violence today—law—perpetuates, rather than challenges norms. I argue that it does the former, because legal decision makers, like the …

Criminal Trespass And Computer Crime, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Computer Fraud and Abuse Act (CFAA) criminalizes the simple act of trespass upon a computer—intentional access without authorization. The law sweeps too broadly, but the courts and scholars seeking to fix it look in the wrong place. They uniformly focus on the term “without authorization” when instead they should focus on the statute’s mens rea. On a conceptual level, courts and scholars understand that the CFAA is a criminal law, of course, but fail to interpret it comprehensively as one.

This Article begins the first sustained treatment of the CFAA as a criminal law, with a full elaboration of …

Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?, Bruce A. Green, Ellen Yaroshefsky

Duquesne Law Review

No abstract provided.

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 …

After Abolition: Acquiescence, Backlash, And The Consequences Of Ending The Death Penalty, Austin Sarat, Charlotte Blackman, Elinor Scout Boynton, Katherine Chen, Theodore Perez

Hastings Journal of Crime and Punishment

No abstract provided.

Prosecuting Members Of Defense Legal Teams And Its Ethical Implications For The Prosecutor: A Proposal For A New Ethical Standard, Belle Yan

Hastings Journal of Crime and Punishment

This Note explores improprieties and conflicts of interest that may arise when a prosecutor’s office investigates and files charges against defense counsel or a member of the defense legal team. Specifically, this Note focuses on such investigations and charges that arise from defense counsel’s representation of a defendant whom the same prosecutor’s office is prosecuting. The intimately adversarial and professional relationships between prosecutors and defense attorneys taint the legitimacy of any charges against defense counsel for alleged misconduct. The ethical standard proposed here suggests a non-waivable conflict of interest. This would assist the prosecutor’s office in avoiding the appearance of …

Pandemic, Protests, And Prison Reform? Why 2020 Is A Catalyst To Rethink Drug Policy, Keelia Lee

St. Thomas Law Review

This Article will argue for the abandonment of the current criminal justice system as it relates to drug offenses and for its replacement with a medical model to address the healthcare problem of addiction. The medical model approach calls for complete decriminalization of all controlled substances coupled with better rehabilitation and reintegration policies. This Article argues the criminalization of drugs has targeted minorities under the guise of keeping communities safe. It will look at the differences between the United States and Portugal, a country that has implemented the medical model, while also analyzing recent legislation in the United States addressing …

Are We Still Cheap On Crime? Austerity, Punitivism, And Common Sense In The Trump/Sessions/Barr Era, Hadar Aviram

Hastings Journal of Crime and Punishment

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and varying degrees of optimism about its potential. But even optimistic commentators were taken aback by the Trump-Sessions administration’s criminal justice rhetoric. This paper maps out the extent to which federal, state, and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns. The paper concludes that the overall salutary trends from 2008 onward …

Life, Liberty, And Rental Property: Oakland’S Nuisance Eviction Program, Ethan Silverstein

Hastings Journal of Crime and Punishment

No abstract provided.

Preface To The Symposium Issue

Hastings Journal of Crime and Punishment

No abstract provided.

The First Ten Years Of The Lay Judge System: Now, Do We Have “Hope” For Criminal Trials In Japan?, Mari Hirayama

Hastings Journal of Crime and Punishment

No abstract provided.

Victim Participation In The Criminal Process In Japan, Shigenori Matsui

Hastings Journal of Crime and Punishment

No abstract provided.

What The Saiban-In System Brought From The Perspective Of A Defense Lawyer, Megumi Wada

Hastings Journal of Crime and Punishment

No abstract provided.

The Prosecution Review Commission Process – Historical Analysis And Some Suggestions For Change, Carl F. Goodman

Hastings Journal of Crime and Punishment

No abstract provided.

Lay Judge And Victim Participation In Japan: Japan’S Saiban’In Trial, The Prosecution Review Commission, And The Public Prosecution Of White-Collar Crimes, Hiroshi Fukurai

Hastings Journal of Crime and Punishment

In September 2019, the University of California Hastings Law School hosted a symposium on Japan’s newly instituted public and victim participation systems in the criminal process. This paper addresses themes raised by five scholars' presentations at the symposium, covering the effectiveness and impact of three different newly adopted systems of lay and victim participation in Japan: (1) the new 2009 law of the Prosecution Review Commission (PRC), a Japanese-style “civil grand jury” originally introduced in 1948, which gave the PRC the power to force the prosecution of formerly unindicted cases, thereby challenging and reversing the prosecutor’s original non-prosecution decision; (2) …

The Limits Of Lay Participation Reform In Japanese Criminal Justice, David T. Johnson, Dimitri Vanoverbeke

Hastings Journal of Crime and Punishment

No abstract provided.

The Friendly Skies Are Not Always So Friendly, Rachel Reid

Upper Level Writing Requirement Research Papers

No abstract provided.

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

The Sativas And Indicas Of Proof: Why The Smell Of Marijuana Should Not Establish Probable Cause For A Warrantless Vehicle Search In Illinois, 53 Uic J. Marshall L. Rev. 187 (2020), Cece White

UIC Law Review

No abstract provided.

Resentencing Juveniles: States’ Implementation Of Miller And Montgomery Through Resentencing Hearings, 53 Uic J. Marshall L. Rev. 311 (2020), Emily Komp

UIC Law Review

No abstract provided.

Conversations On The Warren Court's Impact On Criminal Justice: In Re Gault At 50, Cara H. Drinan

Scholarly Articles

This Article examines the Supreme Court’s landmark In re Gault decision of 1967, in which the Supreme Court ushered in the “due process era” of juvenile justice in America by determining that juveniles were entitled to the right to counsel and other procedural safeguards during delinquency proceedings. But this Article continues with a critical focus on the impact of the decision today, examining a dichotomy between what was declared a “revolution in children’s rights,” and how youth in the criminal justice system still have not seen the extent of constitutional protections declared necessary by Gault. Arguing that Gault …

No Longer A ‘Collateral Consequence’: Imprisonment And The Reframing Of Citizenship, Cormac Behan

Articles

This article examines the impact of imprisonment on citizenship. It identifies how civil, political and social rights are circumscribed with a sentence of imprisonment, and scrutinizes to what extent citizenship is limited for prisoners. Drawing on recent developments in England and Wales, it contends that citizenship has been eroded, not as a ‘collateral consequence’ of imprisonment, but rather as a determined penal policy. The boundaries of punishment have become blurred, moving from criminal justice institutions, and extending towards what is termed civil and political penality. Finally, it argues that, because citizenship in prison is inevitably framed around the differences between …

The Cyberworld And Human Trafficking: A Double-Edged Sword, Bridget Dukes

Cybersecurity Undergraduate Research Showcase

This report examines the advantages and disadvantages associated with the growth of technology within the United States, specifically how technology, digital literacy, and cybersecurity can be used to both facilitate and combat sex trafficking and sexual exploitation on the Internet. The first part of the report addresses trafficking statistics in the United States, as well as legal intervention the country has taken against this epidemic, including an explanation of the Trafficking Victims Prevention Act and the FOSTA-SESTA bill. The second part of the report addresses the online recruitment of buyers and sellers, as well as how the use of open-source …

See No Evil: A Look At Florida's Legislative Response To Holding Hotels Civilly Liable For "Turning A Blind Eye" To The Sex Trafficking Monster Hiding Behind Closed Doors, Lori N. Ross

Faculty Scholarship

No abstract provided.

Preventing Sexual Violence: Alternatives To Worrying About Recidivism, Eric S. Janus

Faculty Scholarship

How can it be that in the era in which almost one million Americans are on sex offender registries—most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness, all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past—that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Growing Up Behind Bars: Pathways To Desistance For Juvenile Lifers, Laura S. Abrams, Kaylyn Canlione, D. Michael Applegarth

Marquette Law Review

In the wake of the landmark Supreme Court decision Miller vs. Alabama, a variety of state laws have paved the way for the resentencing and potential release of “juvenile lifers.” Desistance theories pertaining to youth with histories of violent offending suggest that a blend of maturation, internal motivation and identity shifts, and opportunities to adopt and fulfill adult roles will lead to cessation of criminal behavior. Yet, these theories may not apply to young people serving life sentences, as they have limited opportunity to adopt adult responsibilities while imprisoned, less motivation to desist if freedom is not viewed as attainable …

Violence Risk Assessment: Current Status And Contemporary Issues, Sarah L. Desmarais, Samantha A. Zottola

Marquette Law Review

Despite the increased use of violence risk assessment instruments in the criminal justice system, they remain the topic of continued discussion and debate. This Article will discuss the state of science and practice as it relates to assessing risk for violent recidivism, highlighting current issues of concern and empirical investigation. We first provide an overview of violence risk assessment and describe the role of violence risk assessments instruments in this process. We then discuss their current status in science and practice, including the accuracy with which violence risk assessment instruments forecast violent recidivism, their impact on criminal justice decisions, and …

Violent Crime And Media Coverage In One City: A Statistical Snapshot, Michael O'Hear

Marquette Law Review

Many commentators have argued that high levels of public fear and anger regarding violent crime result, at least in part, from distorted coverage of crime in the news media. Among other distortions, it is said that the news media devote greatly disproportionate coverage to the most outrageous instances of violent crime, and that the media fail to provide information that would helpfully contextualize the offenses or humanize the perpetrators. In order to test these latter claims, crime stories from a daily newspaper and an Internet news site in one mid-sized city were collected for one year. As expected, in comparison …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …