Criminal Law Commons^™

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgia Law Review

The Confrontation Clause of the Sixth Amendment grants
“the accused” in “all criminal prosecutions” a right “to be
confronted with the witnesses against him.” A particular
problem occurs when there is a gap in time between the
testimony that is offered and the cross-examination of it, as
where—pursuant to a hearsay exception or exemption—
evidence of a current witness’s prior statement is offered and,
for some intervening reason, her current memory is impaired.
Does this fatally affect the opportunity to “confront” the
witness? The U.S. Supreme Court has, to date, left unclear the
extent to which a memory-impaired witness can …

Sovereign Immunity, The Au, And The Icc: Legitimacy Undermined, Christa-Gaye Kerr

Michigan Journal of International Law

This note examines how the International Criminal Court’s indictment of African leaders has led to a breakdown in the relationship between the Court and the African Union and offers solutions to repair this relationship. In particular, the ICC’s blanket rejection of sovereign immunity and its close relationship with the UNSC delegitimize the Court. As an organization that relies on the cooperation of states across the world, this is something the Court cannot afford. The ICC’s decade-long fight with the African Union over the disproportionate number of charges leveled against African nationals has weakened its stature with African states. This has …

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. …

Drug Conspiracy Sentencing And Social Injustice, Emilie Kurth

University of Colorado Law Review

The D.C. Circuit in United States v. Stoddard confronted a landmine of criminal and socioeconomic justice issues when it held that mandatory minimum sentences for drug conspiracy offenses should be imposed based on the amount of drugs attributable to the individual defendant (the individualized approach) as opposed to the amount of drugs attributable to the conspiracy as a whole (the conspiracy-wide approach). This decision reflects a nationwide circuit split implicating the courts and lawmakers' ideological balancing of the issues of justice, liberty, public safety, and equity. This Comment discusses Stoddard as well as the circuit split in its current form …

Social Media Platforms In International Criminal Investigations, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

In the summer of 2017, hundreds of thousands of videos of the Syrian conflict suddenly disappeared from YouTube. The videos had been published on channels like the Aleppo Media Center, the Shaam News Agency, and the Violations Documentation Center in Syria, which are run by Syrian civil society groups that have been documenting war crimes and other human rights violations since the conflict began in 2011. In a war zone that has been extraordinarily difficult for outside investigators to access, the videos provided crucial evidence that many hoped would eventually lead to international criminal prosecutions. One can readily imagine that …

Three Conceptions Of Corporate Crime (And One Avenue For Reform), Miriam H. Baer

Faculty Scholarship

No abstract provided.

Reevaluating The Adjudication Of Crimes Involving Moral Turpitude, Colleen Muñoz

Lewis & Clark Law Review

Criminalizing immigration status has tainted the lives of permanent residents in the United States for years. A minor misdemeanor conviction imposes the threat of extreme penalties for noncitizens and their continued residence in the United States. Specifically, a conviction of a crime involving moral turpitude can prevent a noncitizen from seeking admission, threaten deportation proceedings, and jeopardize his or her ability to naturalize as a United States citizen. Crimes involving moral turpitude remain undefined in the Immigration and Nationality Act, causing courts to adjudicate the crimes arbitrarily.

In the absence of statutory or administrative direction, jurisdictions across the United States …

The Governor’S Clemency Power: An Underused Tool To Mitigate The Impact Of Measure 11 In Oregon, Aliza B. Kaplan, Venetia Mayhew

Lewis & Clark Law Review

In this Article, we analyze the historical use of the clemency power at both the federal and state levels, including the factors that occurred during the 20th century that resulted in both presidents and governors gradually using the power less frequently up until the 1980s. We examine how the “war on crime” and other political and legal changes, including the imposition of new mandatory minimum sentencing laws during the 1980s and 1990s, has led to mass-incarceration at both a national and Oregonian level. We discuss how this new punitive sentencing and incarceration philosophy has resulted in a general souring of …

Have Problem-Solving Courts Changed The Practice Of Law?, Cynthia Alkon

Cardozo Journal of Conflict Resolution

No abstract provided.

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

All Faculty Publications

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Law Faculty Research Publications

No abstract provided.

State V. Johnson, 199 A.3d 1046 (R.I. 2019), Lauren Bizier

Roger Williams University Law Review

No abstract provided.

Challenging Moral And Policy Rationales For Charging Youth As Adults, Molly Lockwood

Pitzer Senior Theses

Does the practice of charging juveniles as adults serve the retributive and consequentialist goals of criminal justice policy? Proponents of limiting juvenile court jurisdiction argue that the rehabilitation-oriented remedies available therein are neither sufficient to hold adolescents accountable for wrongdoing, nor strong enough to deter future youth crime. The first chapter of this thesis examines the forward and backward looking premises underlying juvenile transfer to adult criminal court. I find that transfer policies are inconsistent with dominant theories of responsibility and punishment as applied to juveniles. I argue in Chapter One that transfer produces undesirable outcomes with respect to the …

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 …

The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby

Articles

No abstract provided.

How The Internet Unmakes Law, Mary Anne Franks

Articles

No abstract provided.

Criminal Law—The Call For An Adequate Remedy: The Lack Of Deterrence And Judicial Consequences For Prosecutors Who Habitually Violate Batson, Altimease Lowe

University of Arkansas at Little Rock Law Review

No abstract provided.

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 …

Revenge Porn And The Aclu’S Inconsistent Approach, Elena Lentz

Indiana Journal of Law and Social Equality

No abstract provided.

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Faculty Publications By Year

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most …

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Georgia Law Review

Despite evidence that America’s low-level courts are
overburdened, unreliable, and structurally biased,
sentencing judges continue to uncritically consider a
defendant’s criminal history in fashioning an
appropriate punishment. Misdemeanor courts lack
many of the procedural safeguards that are thought to
ensure accuracy and reliability. As with other stages of
the criminal justice system, people of color and poor
people are disproportionately burdened with the
inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing
courts have looked behind the mere fact of a prior
conviction and assessed whether that prior conviction
offered any meaningful insight for the subsequent
sentence. …

The Categorical Imperative As A Decarceral Agenda, Jessica M. Eaglin

Articles by Maurer Faculty

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Frank Zimring proposes two alternative methods to decarcerate: states can adopt a categorical imperative to reduce prison populations or states can reform the governance of sentencing. This symposium Essay focuses on the first of these options, as proposed in his tentative Chapter Six, wherein Zimring calls for categorically removing drug-addicted offenders from eligibility for prison sanctions and expanding use of jails for categories of offenses or offenders.

These methods, I suggest, exist in tension with numerous popular sentencing reforms being implemented in the states right now. Popular reforms, including the …

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Distraction That Is Stand Your Ground, Katryna Santa Cruz

FIU Law Review

No abstract provided.

Criminalizing Coercive Control Within The Limits Of Due Process, Erin L. Sheley

Faculty Scholarship

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” …

Victim Impact Statements At Canadian Corporate Sentencing, Erin L. Sheley

Faculty Scholarship

The recent SNC-Lavalin scandal and its political fallout have drawn
public attention to an existing culture of impunity enjoyed by corporate
criminal wrongdoers, despite the 2004 changes to the Criminal Code of
Canada that intended to make corporate prosecutions easier. In this article,
I argue that the conceptual problems with corporate criminal liability may
lie in the criminal justice system’s general misapprehension of the nature of
corporate crime; especially of the distinct nature of the harm experienced
by white collar victims. I further argue that, therefore, part of the solution
to under-enforcement may be evidentiary: the Crown and courts should, …

The Growth And Need For Veterans Treatment Courts, Chad Lennon

Touro Law Review

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Criminal Usury And Its Impact On New York Business Transactions, Christopher Basile

Touro Law Review

No abstract provided.