Criminal Law Commons^™

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Feminicidios En Cd. Juárez: Sombras Del Evanescente Olvido; Luces De Lucha, Fuerza Y Resistencia, Amber Ramirez

Honors Theses

Desde principios de los años noventa, mujeres y niñas en Cd. Juárez, Chihuahua, México han sido raptadas de día y de noche mientras se dirigen al trabajo, a sus casas, o a la escuela. Después de días, semanas y a veces hasta años, muchas han sido encontradas brutalmente asesinadas, calcinadas, mutiladas, violadas y torturadas; sus cuerpos han sido abandonados para luego ser localizados completamente desnudos o parcialmente vestidos, en completo estado de descomposición o solamente en huesos en las calles en las zonas desérticas de Cd. Juárez. El paradero de muchas otras mujeres y niñas aún se desconoce y a …

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …

Murder, Minority, Victims, And Mercy, Aya Gruber

University of Colorado Law Review

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

A Dedication To Andrew E. Taslitz: "It's All About The Egyptians," And Maybe Tinkerbell Too, Stephen E. Henderson

Oklahoma Law Review

No abstract provided.

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Oklahoma Law Review

“Secrets are lies. Sharing is caring. Privacy is theft.” So concludes the main character in Dave Egger’s novel, The Circle, in which a single company that unites Google, Facebook, and Twitter—and on steroids—has the ambition not only to know, but also to share, all of the world’s information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented, massive collection and retention …

What Is The Gist Of The Mail Fraud Statute?, C.J. Williams

Oklahoma Law Review

No abstract provided.

Ending Silence: Demanding Safety From Sexual Assault - I Reported, Brenda V. Smith, Caleb J. Bess, Rebecca I. Heinsen, Jaime V. Yarussi, Michael J. Auger

Research Reports & White Papers

Ending Silence: Demanding Safety from Sexual Assault & Youth Speaking Up about Sexual Abuse in Custody are a series of graphic novels for adult and juvenile inmates in custodial settings. These graphic novels are intended to educate inmates about how to identify and address incidents of sexual assault. The plot lines in these graphic novels dramatize situations we know occur in custodial settings. The use of graphic novels in community education projects is well established. By presenting information through an illustrative medium, these novels aim to disseminate information about the sexual abuse reporting process to inmates at all literacy levels. …

The Punishment Agenda In The Courts, Debra Parkes

All Faculty Publications

This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual …

Due Process Disaggregation, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the …

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

(Ad)Ministering Justice: A Prosecutor's Ethical Duty To Support Sentencing Reform, Michael Cassidy

Loyola University Chicago Law Journal

This Article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level―promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a …

Terry Stops, Anonymous Tips, And Driving Under The Influence: A Study Of Illinois Law, Charles Burns, Michael Conte

Loyola University Chicago Law Journal

In the recent case of Navarette v. California, No. 12-9490 (U.S. Apr. 22, 2014), the United States Supreme Court held that an anonymous tip can support an investigatory stop in the absence of independent corroboration by the arresting officer under the Fourth Amendment to the United States Constitution. In the fourteen years between Navarette and Florida v. J.L., 529 U.S. 266 (2000), in which the Court last addressed anonymous tips, lower courts across the country struggled to determine how United States Supreme Court precedents on anonymous tips apply in the context of drunk or reckless driving. Illinois courts …

Undead Statutes: The Rise, Fall, And Continuing Uses Of Adultery And Fornication Criminal Laws, Joanne Sweeny Dr.

Loyola University Chicago Law Journal

Cohabitation is a reality for a majority of Americans. Nonmonogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. …

The Hanging Judge By Michael A. Ponsor––Capital Punishment: Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Cleveland State Law Review

No abstract provided.

Limiting Criminal Law’S “In For A Penny, In For A Pound” Doctrine, Wesley M. Oliver

Law Faculty Publications

The Supreme Court took two cases this Term involving doctrines of criminal law typically dealt with by state courts, and in each of them, it limited criminal liability for harms not attributable to a defendant’s culpability.

Although the Court interprets federal criminal statutes with some frequency, it rarely considers provisions of statutes that would provide persuasive authority for the interpretation of state criminal codes—at least not the most used provisions of state criminal codes. Unlike state criminal laws, federal criminal laws have jurisdictional requirements and generally have more complex components. It is typically these unique aspects of federal criminal laws …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

Smoke And Mirrors: Model Penal Code § 305.7 And Compassionate Release, E. Lea Johnston

UF Law Faculty Publications

The American Law Institute has revised the sentencing articles of the Model Penal Code to include three important sentence modification measures. One of these provisions, Model Penal Code § 305.7, would allow a judge to reduce a prison sentence at any time for any “compelling” reason, if the purposes of sentencing justify sentence modification. Compelling circumstances may include advanced age, physical infirmity, or any other circumstance that sufficiently affects the retributive or utilitarian aims that animate limiting retributivism, the philosophy undergirding the revised Model Penal Code sentencing articles. Limiting retributivism provides that individual sentences should occur within the bounds of …

Reflections On The Indictment Of Sitting Heads Of State And Government And Its Consequences For Peace And Stability And Reconciliation In Africa, Charles Chernor Jalloh

Articles

In these remarks, the author considers the most recent challenge to the application of international criminal justice in Africa: Kenya's controversial November 2013 proposal to amend the Rome Statute of the International Criminal Court to temporarily exempt from prosecution sitting presidents accused of involvement with international crimes. He examines several legal and practical reasons why such a proposal is untenable. Instead, citing the principle of complementarity and urging the principled use of judicial and prosecutorial discretion, he contends that much of the African Union's current concerns about the Kenya Situation can be addressed within the confines of existing Rome Law. …

"Because Ladies Lie": Eliminating Vestiges Of The Corroboration And Resistance Requirements From Ohio's Sexual Offenses, Patricia J. Falk

Cleveland State Law Review

The Ohio General Assembly has made considerable progress in modernizing the state’s rape laws, eliminating many of the substantive and procedural obstacles to the successful prosecution of criminals. Yet, Ohio’s contemporary sexual offense provisions include vestiges of both the corroboration and resistance requirements. More specifically, the corroboration requirement (1) still applies to the crime of sexual imposition and (2) is used as a grading factor in gross sexual imposition. The resistance requirement (1) has been eliminated from rape and gross sexual imposition, but not sexual battery and sexual imposition, and (2) the wording of the existing resistance-elimination provisions is legally …

Walk & Turn, Finger To Nose, One Leg Stand: Oh My - How Florida Courts Have Defined Field Sobriety Exercises, Amar V. Patel, Krysten A. Pogue

St. Thomas Law Review

If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. When law enforcement stops a vehicle based on a reasonable suspicion of DUI, probable cause must be established before making an arrest. Field sobriety exercises ("FSEs") are commonly used police procedures to establish that probable cause. Developing probable cause is of critical importance, not only because it is a prerequisite to a lawful arrest, but also because citizens who …

The Admissibility Of Weapons Not Used In The Crime Charged, Melynda Melear

St. Thomas Law Review

In many prosecutions in which weapons have been used to commit charged offenses, the State seeks to introduce into evidence weapons not actually used in the crime but purportedly related either to the charged crime or to the credibility of a witness. For years, courts have struggled with the issue of whether the State has established the relevancy of a weapon not used in the crime underlying the case at hand as well as whether the admission of a weapon under those circumstances would cause unfair prejudice to the defendant. Case law on the relevancy of weapon evidence presents a …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Marxist And Soviet Law, Stephen C. Thaman

All Faculty Scholarship

This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Abolishing Jailhouse Snitch Testimony, Russell D. Covey

Faculty Publications By Year

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. …

Finality And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

New science and evolving societal views have led commentators to question the doctrine of finality. This parallels commentators’ embrace of rehabilitation during the middle of the last century. Today, casting off the strictures of finality and embracing rehabilitation are considered complementary positions, but finality has historically been understood as promoting rehabilitation. This shift stems from our changing understandings of rehabilitation. Rehabilitation focuses on offender change — on whether an offender is a final product or, rather, whether he is capable of transformation. Offender change, though, could be either change in character or change in behavior, or a combination of these …

A Second Chance: Rebiography As Just Compensation, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

Scholarly Publications

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …