Criminal Law Commons^™

Trafficking Terror And Sexual Violence: Accountability For Human Trafficking And Sexual And Gender-Based Violence By Terrorist Groups Under The Rome Statute, Coman Kenny, Nikita Malik

Vanderbilt Journal of Transnational Law

Terrorist groups are increasingly involved in human trafficking, specifically targeting women and girls of ideologically opposed groups or religions. Frequently, this phenomenon involves the perpetration of various forms of sexual violence against those trafficked. The commission of the interlinked crimes of human trafficking, sexual violence, and terrorism is relatively new, encompassing a vicious cycle in which each crime effectively flows from the commission of the others: sexual violence is facilitated by human trafficking, human trafficking is motivated, in part, by sexual violence, and both crimes spread terror among civilian populations. In light of the Prosecutor of the International Criminal Court …

The Illicit Antiquities Trade As A Funding Source For Terrorism: Is Blockchain The Solution?, Taylor Moskowitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cyberbullying: Are You Protected? An Analysis And Guide To Effective And Constitutional Cyberbullying Protections, Mendel Forta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Blood Antiquities Convention As A Paradigm For Cultural Property Crime Reduction, Derek Fincham

Cardozo Arts & Entertainment Law Journal

In 2017, the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention, which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe's Convention at a meeting held in Lucca, …

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is?), Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.

It is thus surprising that the Court and those scholars who push this objection have …

Eradicating The Label “Offender” From The Lexicon Of Restorative Practices And Criminal Justice, Lynn S. Branham

All Faculty Scholarship

This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime. The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.” The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.” One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change …

Bias In, Bias Out, Sandra G. Mayson

Scholarly Works

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies …

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 …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Celebrating Four Unruly Women, Elaine Craig

Articles, Book Chapters, & Popular Press

In 1846, prison administrators at the Kingston Penitentiary replaced the daily whipping and flogging of prisoners with a new form punishment - The Box. The Box, as Ted McCoy describes it in his new book, Four Unruly Women: S fries f Incarceration and Resistance from Canada's Most Notorious Prison, was a six foot tall, three foot deep coffin used to impose a form of extreme isolation on unruly prisoners. The Box became the primary form of severe punishment for women prisons at Kingston when flogging was abolished.

Four Unruly Women depicts a shocking portrait of the cruelty and inhumanity imposed …

Incarceration In Canada: Risks To And Opportunities For Public Health, Adelina Iftene

Articles, Book Chapters, & Popular Press

In their introduction to the latest edition of Public Health Law and Policy in Canada, the editors are unequivocal about the importance of this area of growing interest and scholarship. This text, they explain, “explores a range of perspectives that examine how law, in many forms and contexts, plays a critical role in protecting the public from known and emerging threats and promoting conditions for health.”

Written and edited by leading health law scholars and featuring contributions from legal and health experts from across the country, this book provides a comprehensive overview of our Canadian public health law and policy …

Talking Foreign Policy: Responding To Rogue States, Paul Williams, Todd F. Buchwald, James Johnson, Michael P. Scharf, Milena Sterio

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Atrocity Prevention In The New Media Landscape, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Journalists have traditionally played a crucial role in building public pressure on government officials to uphold their legal obligations under the 1948 UN Convention on the Prevention and Punishment of Genocide. But over the past twenty years there has been radical change in the media landscape: foreign bureaus have been shuttered, young freelance journalists have taken over some of the work traditionally done by experienced foreign correspondents, and, more recently, the advent of social media has enabled people in conflict-affected areas to tell their own stories to the world. This essay assesses the impact of these changes on atrocity prevention …

A Review Of The Wrongful Convictions Reader: A Comprehensive Resource For Students, Faculty, And Practitioners, Stephanie Roberts Hartung

Cardozo Law Review de•novo

Professor Stephanie Roberts Hartung reviews The Wrongful Convictions Reader, a 2019 book by Russell D. Covey and Valena E. Beety.

Effective Assistance Of Counsel? An Empirical Study Of Defense Attorneys’ Decision-Making In False-Confession Cases, Sara C. Appleby, Hadley R. Mccartin

Cardozo Law Review de•novo

Although there is considerable literature on the causes of false confessions and the effects confession evidence has on juror decision-making, little research has examined attorneys’ decision-making in disputed confession cases. As the intervening step between when the confession is elicited and the case is resolved, it is crucial that research examine effects of confession evidence on this population. The current studies investigate defense attorneys’ knowledge and perception of key interrogation and confession issues as well as their decision-making in a disputed confession case. Overall, results show that defense attorneys are knowledgeable about key interrogation and confession issues and are aware …

The Temptations Of Scapegoating, Daniel B. Yeager

Faculty Scholarship

We say “it is better that ten guilty persons escape, than one innocent suffer.” Evidence of the law’s 10:1 preference for false acquittals, however, is weak. In actuality, the “twofold aim … that guilt shall not escape or innocence suffer” weights the avoidance of false convictions and false acquittals equally. Likewise, the Supreme Court’s claim that “the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence” is, it turns out, porous. The truth sought at trial need be only true enough—verdicts are legally true if fairly arrived at. While the risk …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Gundy And The Civil-Criminal Divide, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, …

A Safe Harbor In The Opioid Crisis: How The Federal Government Should Allow States To Legislate For Safe Injection Facilities In Light Of The Opioid Public Health Emergency, Amber A. Leary

Brooklyn Law Review

Opioid addiction is wreaking havoc across the United States, leading to a shocking number of overdoses and deaths. This epidemic has prompted the Trump Administration to declare opioid abuse a public health emergency and to call for increases in evidence-based treatment for those addicted to harmful opioids. To combat this epidemic, some cities have embraced one such evidence-based treatment plan—safe injection facilities—which are infirmaries where drug users can inject pre-obtained drugs under the supervision of nurses or overdose reversal specialists who can respond in real time to prevent overdose and death. Though safe injection facilities outside the United States have …

The Problem Of The Terror Non-State: Rescuing International Law From Isis And Boko Haram, Darin E.W. Johnson

Brooklyn Law Review

This article examines how terror non-states, such as ISIS and Boko Haram, blur the distinctions between non-state actors and states under international law. Terror non-states’ confounding of this dichotomy undermines the efficacy of international human rights law in the territories that they control, complicates responsive foreign military intervention, and confuses the appropriate legal framework that governs armed conflicts in which they are involved. This article assesses these challenges and makes recommendations from a perspective that gives primacy to the protection and liberation of vulnerable populations. The article recommends that the United Nations Security Council pass a resolution that mandates that …

The Structural Dimensions Of Race: Lock Ups, Systemic Chokeholds, And Binary Disruptions, Cedric Merlin Powell

Faculty and Staff Scholarship

Disrupting traditional conceptions of structural inequality, state decision making power, and the presumption of Black criminality, this Essay explores the doctrinal and policy implications of James Forman, Jr.’s Pulitzer Prize winning book, Locking Up Our Own, and Paul Butler’s evocative and transformative book, Chokehold. While both books grapple with how to dismantle the structural components of mass incarceration, state legitimized police violence against Black bodies, and how policy functions to reify oppressive state power, the approaches espoused by Forman and Butler are analytically distinct. Forman locates his analysis in the dynamics of decision-making power when African American officials wield power …

Guilty Before Proven Guilty, Calvin Bolser

A with Honors Projects

This research project is about identifying if there is a problem with the current justice system on how prosecutors handle pleas and the impact they have with their sole discretionary power. Prosecutors have been shown to hold an unbalanced amount of power and leave the system unjust. Focusing on the legal, moral and ethical standings that prosecutors should follow and whether or not the acts that some prosecutors use break those principles. The American Bar Association has set up specific guidelines for prosecutors to follow, however they may be too broad and thus allow them to manipulate the system with …

Finding Their Feet: How Reentry Court Changes The Path Ofreturning Citizens In The District Of Minnesota, Katie Sreenan

Minnesota Journal of Law & Inequality

No abstract provided.

The Compliance Process, Veronica Root Martinez

Journal Articles

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Algorithms & Instruments: The Effective Elimination Of New Jersey’S Cash Bail System And Its Replacement, David Reimel Iii

Penn State Law Review (2003 - Present)

Until 2017, every state conditioned pretrial release on cash bail. Judges across the United States predicted the risk individuals posed of failing to appear and the danger to the community. As a result, indigent individuals waited in jails merely because they could not afford their bail. In 2017, New Jersey spearheaded the movement to change how the bail system operates by passing the Criminal Justice Reform Act (“CJRA”), which created an objective decision-making tool called the Public Safety Assessment.

Today, New Jersey judges are no longer required to speculate about the future decisions of individual defendants. Instead, the Public Safety …

Prosecutors And Voters Are Becoming Smart On Crime, Barbara L. Mcquade

Articles

How to explain the recent trend of electing reform-minded local prosecutors? It may be that voters are seeing through tough talk to embrace smarter strategies to reduce crime.

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

Mens Rea Reform And Iis Discontents, Benjamin Levin

Scholarship@WashULaw

This article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …