Criminal Law Commons^™

The Corporate Conspiracy Vacuum, J. S. Nelson

Cardozo Law Review

In the absence of charges available for traditional conspiracy, public and judicial frustration with agents' lack of accountability has led to the distortion of alternative doctrines in efforts to impose liability on what should have been traditional conspiracy prosecutions. This paper examines those efforts and their impact on these alternative doctrines.

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Cardozo Law Review

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and "possessed" simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the "third-party doctrine," which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor

Faculty Scholarship

Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were placed in solitary so often that there was a waitlist at the …

Resentencing In The Shadow Of Johnson V. United States, Leah Litman

Articles

On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …

Lessons Learned From Ferguson: Ending Abusive Collection Of Criminal Justice Debt, Neil L. Sobol

Faculty Scholarship

On March 4, 2015, the Department of Justice released its scathing report of the Ferguson Police Department calling for “an entire reorientation of law enforcement in Ferguson” and demanding that Ferguson “replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Unfortunately, abusive collection of criminal justice debt is not limited to Ferguson. This Article, prepared for a discussion group at the Southeastern Association of Law Schools conference in July 2015, identifies the key findings in the Department of Justice’s report …

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Faculty Scholarship

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Catholic University Law Review

When parties enter into an illegal agreement and bring a dispute arising from the transaction before a court, the court finds itself in a difficult position. The court is faced with two competing interests: the importance of both upholding and protecting the dignity of the law and honoring inherent principles of U.S. contract law - freedom of contract and individual autonomy. There exists a common misconception that courts, when presented with illegal contracts, follow the rule of non-enforcement. However, an examination of case law indicates that courts are instead concerned with the consequences of their choices, and have consistently followed …

Visualizing Abolition: Two Graphic Novels And A Critical Approach To Mass Incarceration For The Composition Classroom, Michael Sutcliffe

SANE journal: Sequential Art Narrative in Education

This article outlines two graphic novels and an accompanying activity designed to unpack complicated intersections between racism, poverty, and (d)evolving criminal-legal policy. Over 2 million adults are held in U.S. prison facilities, and several million more are under custodial supervision, and it has become clearly unsustainable. In the last decade, there has been a shift in media conversations about criminality, yet only a few suggest decreasing our reliance upon incarceration. In meaningfully different ways, the two novels trace the development of incarceration from its roots in slavery to its contemporary anti-democratic iteration and offer an underpublicized alternative.

Critical and community …

Justice For The 1 Percent: A Corrupt Governor Stays Free, Those Who Should Have Never Been Jailed Die There, Jeffrey Bellin

Popular Media

No abstract provided.

Books Received, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Application Of The Mail And Wire Fraud Statutes To International Bribery: Questionable Prosecutions Of Questionable Payments, Richard A. Hibey

Georgia Journal of International & Comparative Law

No abstract provided.

Corruption And Development: The Need For International Investigations With A Multijurisdictional Approach Involving Multilateral Development Banks And National Authorities, Juan G. Ronderos, Michelle Ratpan, Andrea Osorio Rincon

Osgoode Hall Law Journal

We argue that while Multilateral Development Banks (“MDBs”) and national governments have mechanisms to fight corruption, the objectives and outcomes of these enforcement mechanisms diverge. MDBs are interested in the causes and effects of corruption from a development perspective and, as such, tend to sanction small and medium enterprises and individuals, while national governments are focused on a more punitive outcome, targeting larger multinational corporations. This article examines the enforcement objectives articulated in national legislation, namely the US Foreign and Corrupt Practices Act and its Canadian counterpart, the Corruption of Foreign Public Officials Act, as well as several Canadian cases, …

State V. Merlino, 131 Nev. Adv. Op. No. 65 (Sept. 10, 2015), Brittany L. Shipp

Nevada Supreme Court Summaries

The issue before the Court was whether selling stolen property through a retractable sliding tray on a pawn shop’s drive-through window satisfied the element of unlawful entry of a building as defined in the burglary statute. The Court held that when the outer boundary of a building is not self-evident from the shape and contours of the structure itself, courts must apply California’s “reasonable belief” test which legally defines the outer boundary to include, “any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization.”

Downgrading Non-Violent Drug Crimes:An End To The “Lock ‘Em And Leave ‘Em” Mentality, Tran T. Nguyen

Journal of Public Law and Policy

No abstract provided.

Human Rights And Prison Rape, Lenny Gallo

21st Century Social Justice

Prison Rape is a common occurrence in America’s penal institutions. Sexual assault occurs most frequently on juveniles, the LGBT community, and people who are weak in stature. To combat this problem, The Prison Rape Elimination Act (PREA), passed in 2003 with bipartisan support and the backing of special interest groups, was envisioned as a human rights milestone. Prison rape is assumed by an apathetic public to be an expected part of the incarceration experience. PREA, in addition to encountering major time setbacks in implementation, has not become a human rights milestone and, even where it has been implemented, is often …

Systemic Corruption In An Advanced Welfare State: Lessons From The Quebec Charbonneau Inquiry, Denis Saint-Martin

Osgoode Hall Law Journal

The Quiet Revolution in the 1960s propelled the province of Quebec onto the path of greater social justice and better government. But as the evidence exposed at the Charbonneau inquiry makes clear, this did not make systemic corruption disappear from the construction sector. Rather, corrupt actors and networks adjusted to new institutions and the incentive structure they provided. The patterns of corruption emerging from the Charbonneau inquiry bear the imprint of the so-called Quebec model inherited from the Quiet Revolution in at least three ways: (1) the economic nationalism that made public policies partial towards French-speaking and Quebec-based businesses, notably …

Banning Bribes Abroad: Us Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman

Osgoode Hall Law Journal

The United States has been at the forefront of international efforts to combat corruption in the global economy for almost forty years, chiefly through its Foreign Corrupt Practices Act [FCPA]. Over the past decade, US enforcement of the FCPA has surged in terms of both the number of enforcement actions and the application of increasingly expansive interpretations of jurisdiction through which to enforce the FCPA on an extraterritorial basis. Extraterritorial enforcement of the FCPA has promoted anti-corruption policies and the banning of bribes abroad, but three aspects of FCPA enforcement shape and constrain the broader goals of global anti-corruption governance …

State V. Smith, 131 Nev. Adv. Op. 63 (Sept. 3, 2015), Jessie Vargas

Nevada Supreme Court Summaries

Defendant Terrance Reed Smith entered a no contest plea to one count of child abuse resulting in substantial bodily harm. The Supreme Court of Nevada held Smith’s plea was involuntary because the plea was made in response to acts of coercion by the Washoe County Department of Social Services (“DDS”).

If You've Got The Money, I'Ve Got The Time: The Benefits Of Incentive Contracts With Private Prisons, Michael G. Anderson

Buffalo Public Interest Law Journal

Governments increasingly rely on private prison companies to manage the daunting demands associated with their ever- increasing prison populations. The private prison industry provides governments at all levels (federal, state, and local) with an alternative to the costly and time-consuming construction of additional public facilities. Governments, however, have all too often adopted a flawed pricing strategy, paying private prison companies fixed per diem rates to house prisoners. This model both incentivized and tolerated poor conditions with greater emphasis placed on the industry's bottom line than benefits to the state, the prison population, or society as a whole.

This article asserts …

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Understanding And Taming Public And Private Corruption In The Twenty-First Century, Ron Atkey, Margaret E. Beare, Cynthia Williams

Osgoode Hall Law Journal

We are pleased to present these articles that were originally presented at a symposium held at Osgoode Hall Law School on 6–7 November 2014.1 Our objective was to offer a symposium that looked at corruption from diverse perspectives, with a broad national and international focus on business, financial, governmental, private sector, and enforcement corruption. Both the Symposium and the compilation of this special issue of the Journal were unique. They required an interplay between contributions from professionals working on the ground in various countries around the world (such as practitioners working in the World Bank, the Inter-American Development Bank, and …

A Reason To Resist: The Use Of Deadly Force In Aiding Victims Of Unlawful Police Aggression, Kindaka Sanders

San Diego Law Review

Some two and a half years before the fatal shooting of Michael Brown by a Ferguson, Missouri Police Officer, the Indiana State Legislature enacted Indiana Code § 35-41-3-2 authorizing the use of force, including deadly force against public servants acting unlawfully against the persons or property of Indiana citizens. The statute, passed in March of 2012, is the first of its kind. It was passed in reaction to the Indiana Supreme Court's decision in Barnes v. State, which abolished the common law right to resist an unlawful arrest. Gun rights groups, most notably the National Rifle Association (NRA), responded in …

Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen Henderson

Other Faculty Publications

I am grateful for the opportunity to speak to you today about Senate Bill 838 and the reform of Oklahoma’s civil asset forfeiture. I am a professor of law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure. I have experience achieving consensus solutions in contested areas of law, most notably in the six years I spent drafting a new set of ABA Criminal Justice Standards, and I know that change is rarely easy. No matter the topic and whatever the status quo, there is sure to be someone who feels it is …

No Money, No Lawyer — No Children: The Right To Counsel For Indigent Defendants In Nevada Termination Of Parental Rights Proceedings, Erik J. Foley

Nevada Law Journal

No abstract provided.

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Faculty Scholarship

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …

Vat Fraud And Terrorist Funding: The Azizi Extradition, Part Ii, Richard Thompson Ainsworth

Faculty Scholarship

This paper considers the remaining seven (7) Missing Trader Intra-Community (MTIC) fraud schemes alleged (some conceded) to have been conducted by Samir Azizi, a 25 year old German/Afghan citizen, who was extradited from the United States to Germany on April 14, 2015. The MTIC fraud schemes considered in this Part II involve alleged losses of €45,801,403 under 63 further criminal counts.

Underlying both Parts of this assessment is a fundamental (but unanswered) question: “Who exactly is Samir Azizi? Is he the mastermind of a multi-million euro VAT fraud, a fundraising fraudster for terrorist organizations, or a youthful face-of- convenience disguising …

Cassinelli V. State Of Nevada, 131 Nev. Adv. Op. 62 131(Aug. 27, 2015), Mackenzie Warren

Nevada Supreme Court Summaries

The Court of Appeals determined that (1) the district court erred by ruling that Cassinelli was not eligible for alcohol treatment under NRS § 458.300(1)(d); (2) the district court did not abuse its discretion by denying Cassinelli’s request for assignment to a program of treatment; (3) the plea agreement was not breached and the prosecutor did not engage in misconduct at sentencing; (4) the district court did not err by refusing Cassinelli an opportunity to cross-examine the victim during her impact statement at sentencing; (5) Cassinelli’s sentence was illegal.

For Trinkets, Tonics, And Terrorism: International Wildlife Poaching In The Twenty-First Century, Ranee Khooshie Lal Panjabi

Georgia Journal of International & Comparative Law

No abstract provided.

Book Review: Crime In America, Joseph H. Hill

Akron Law Review

Americans have traditionally been able to meet the challenge of critical situations once the collective consciences of the people have been united and committed to a common cause. If we are aware of the causes of crime as stated by Ramsey Clark, then such a united effort must be launched if America is to remain a country where all men are free to live in peace and without fear.