Criminal Procedure Commons^™

Buried Alive: Gay V. Baldwin And Unconstitutional Solitary Confinement For Prisoners With Mental Illness, Hannah May

Loyola University Chicago Law Journal

Few inmates placed in solitary confinement escape the detrimental consequences of the punitive, oppressive conditions. Anthony Gay is no exception. As a teenager, Gay pled guilty to robbery for stealing a hat and a $1 bill and violated his probation by driving a vehicle without a license when he was twenty years old. Gay was supposed to be released in three and a half years with good behavior, but he suffers from borderline personality disorder. The symptoms of his mental illness, such as self-mutilation and throwing bodily fluids, manifested in prison. The manifestations of his mental illness landed him in …

Politics And The Institutional Integrity Of The Icc, In The Past, Present, And Future Of The International Criminal Court (Alexander Heinze & Viviane Dittrich Eds., 2021), Shannon Fyfe

Books and Chapters

The Rome Statute of the International Criminal Court (‘Rome Statute’ and ‘ICC‘) emerged following years of interest from various governments in establishing a permanent court to prosecute perpetrators of international crimes. The treaty that eventually established the ICC was the result of inter-governmental negotiations, which were ultimately successful in large part due to the ‘tribunal fatigue’ of governments concerned by “the financial and political costs of creating ad hoc United Nations (‘UN’) criminal tribunals for the atrocities that burdened so many regions of the world”. A permanent court would “provide greater efficiencies in addressing the investigation and prosecution of atrocity …

Invoking Criminal Equity's Roots, Cortney Lollar

Law Faculty Scholarly Articles

Equitable remedies have begun to play a critical role in addressing

some of the systemic issues in criminal cases. Invoked when other

solutions are inadequate to the fair and just resolution of the case,

equitable remedies, such as injunctions and specific performance,

operate as an unappreciated and underutilized safety valve that

protects against the procedural strictures and dehumanization that are

hallmarks of our criminal legal system. Less familiar equitable-like

legal remedies, such as writs of mandamus, writs of coram nobis, and

writs of audita querela, likewise serve to alleviate fundamental errors

in the criminal process. Several barriers contribute to the …

The Power Of The Dissent And Writing The Future Of Justice: Maat, Aristotle's Rhetoric, And Justice Ginsburg's Dissent In Kentucky V. King, Livan Davidson

Intercultural Human Rights Law Review

This article explains why Ginsburg's dissent in King is rhetorically superior to the majority opinion. It evaluates, by way of comparing and contrasting, the persuasiveness of the dissent and majority opinions in King. This article examines the opinion through the lens of Aristotle's rhetorical model and the ancient tenet of Maat. It analyzes Ginsburg and Justice Alito's (Alito) use of rhetorical devices that appeal to persuasion, including logos (appeal to logic), ethos (appeal to credibility), pathos (appeal to emotions), and Maat (rightness in the world). This article concludes that Ginsburg's use of rhetoric has a superior appeal to fairness and …

Objective Punishment, Anthony M. Dillof

Law Faculty Research Publications

Should the punishment fit the criminal as well as the crime? The article argues that idiosyncratic features of the criminal that might affect subjective punishment experience should not be considered when assessing the severity of the punishment for proportionality purposes.

Beyond A Reasonable Doubt: Juries Don’T Get It, Hon. James A. Shapiro, Karl T. Muth

Loyola University Chicago Law Journal

Proof beyond a reasonable doubt has been de rigueur in criminal cases almost since the dawn of the republic. It is based on the premise that it is better to let several guilty people go free in order to save one innocent person from wrongful conviction. The jury in a criminal case is not merely an audience. It is the central mechanism without which the wheels of American criminal justice cannot turn-- and operates as the final safeguard against a grave error. However, while the Constitution describes the importance, composition, and role of the jury, it does not explicitly …

Ua12/8 Annual Campus Safety & Security Report, Wku Police

WKU Administration Documents

A statement of current campus policies regarding procedures for students and others to report criminal actions or other emergencies occurring on campus and policies concerning the institution's response to such reports.

Deprivation Of The Right To Counsel For Federal Pretrial Detainees During The 2019 Novel Coronavirus Pandemic, 54 Uic L. Rev. 659 (2021), Mary Vukovich

UIC Law Review

No abstract provided.

Criminalization Of Homies: Gang Policing Tactics And Community Fragmentation, Juan Flores

Hastings Journal of Crime and Punishment

While growing scholarship has been crucial in understanding gang policing’s nature and impacts, there is currently limited research focusing on how policing relies upon fragmenting communities and perpetuating divisions within them. Gang policing claims to respond to conflict and rivalries between “gangs,” but how does this policing produce and perpetuate these community divisions? This paper seeks to understand how gang policing tactics perpetuate divisions and fragment communities while simultaneously producing criminality. This study used a qualitative approach, interviewing eight participants in Berkeley, San Diego, and Los Angeles who are perceived by law enforcement as “gang members” but who self-identify instead …

Masthead

Hastings Journal of Crime and Punishment

No abstract provided.

Discovery Of Expert Reports And Testimony In Criminal Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …

Are There Stories Prosecutors Shouldn't Tell? The Duty To Avoid Racialized Trial Narratives, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system's racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment …

Escaping Death: The Colorado Method Of Capital Jury Selection, 54 Uic J. Marshall L. Rev. 247 (2021), Sophie Honeyman

UIC Law Review

No abstract provided.

Transforming Crime Victims’ Rights: From Myth To Reality, Robyn Holder, Tyrone Kirchenghast, Paul Cassell

Utah Law Faculty Scholarship

Rights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person. In this Guest Editors Introduction to the Special Issue, Making Rights Real, we suggest that victims’ rights are in transition. Rights may be set out in legal instrument but, we argue, it is through the practices of people in their myriad settings that are part of that shift to realising rights in action. We describe ways in which we see victims’ rights being realised in different parts of the …

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

False Confession In Wrongful Convictions And The Effect Of Recording Custodial Interrogations Through Exoneration, Nana F. Owusu

West Chester University Doctoral Projects

To reduce false confessions and guilty pleas, twenty-seven states have passed a law to have all custodial interrogations electronically recorded. According to the Innocence Project briefing book (2017) on the electronic recording of interrogations, electronic recording is audio and audiovisual (Innocent Project, 2017). This study explores the factors that lead to false confessions and guilty pleas in wrongful convictions. The literature explains how deprivation, coercion, violence, and evidence fabrication can lead to false confessions and guilty pleas. Using the comparative/experimental research approach to study two groups (27 states with recording laws and 27 states (including territories) with no recording laws), …

Behind Bartkus: A Flamboyant Lawyer, A Vindictive Judge, And The Untold Story Of Double Jeopardy’S Dual Sovereignty, Stephen E. Henderson, Dean Strang

Faculty Articles

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or …

The Court Is In Recession: On The Implications Of The Covid-19 Pandemic For Indigent Defense Spending, Andrew L. B. Davies, Victoria M. Smiegocki, Hannah E. Hall

Other Publications

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007–2009. Redistributive policies—those which use taxpayer funds to support individuals who themselves pay little or no tax—are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. …

Who Wants To Be A Prosecutor? And Why Care? Law Students’ Career Aspirations And Reform Prosecutors’ Goals, Shih-Chun Steven Chien, Stephen Daniels

Law Faculty Articles and Essays

Often called “progressive” or “reform” prosecutors, a number of reform-minded prosecutors have been elected recently across the United States—promising a distinctive vision of criminal justice and signaling that their role will be more attuned to issues of race and equity than “law and order.” Furthering this vision requires dramatic changes to the working cultures—the norms, practices, and even personnel—of their offices. Diversity plays a major role.

One central challenge is identifying, attracting, and hiring newly-minted lawyers who can, over time, be socialized into and sustain a changing organizational culture. This article empirically examines that challenge, which involves two sides of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

Restitution For Child Pornography: Reframing A System For Victims Harmed By Too Many, Mackenzie Durkin

Loyola University Chicago Law Journal

Courts have commented that victims of child pornography suffer harm that is like “a thousand cuts.” This characterization is fitting because once images of a victim’s childhood sexual abuse are on the internet, the images are there forever. As a result, these victims are constantly revictimized by the knowledge that their images are being trafficked and consumed across the world.

This Comment analyzes the current framework for compensating victims through criminal restitution. Victims of all federal crimes, including child pornography offenses, are entitled to restitution for the full amount of their losses. However, this standard became complicated with child pornography …

An Empirical Assessment Of Homicide And Suicide Outcomes With Red Flag Laws, Rachel Delafave

Loyola University Chicago Law Journal

This Article empirically illustrates that red flag laws—laws which permit removal of firearms from a person who presents a risk to themselves or others—contribute to a statistically significant decrease in suicide rates, but do not influence homicide rates. I exploit state-level variation across time in the existence of red flag laws between 1990 and 2018 and find that the existence of a risk-based law reduces firearm-related suicides by 6.4% and overall suicides by 3.7%, with no substitution to non-firearm suicides. Red flag laws are not associated with a statistically significant change in homicides rates. Policymakers should consider red flag laws …

State V. Querido, 229 A.3d 410 (R.I. 2020), Kirsten E. Roy

Roger Williams University Law Review

No abstract provided.

The Status And Legitimacy Of M’Naghten’S Insane Delusion Rule, E. Lea Johnston, Vincent T. Leahy

UF Law Faculty Publications

This Article investigates jurisdictions’ compliance with M’Naghten’s directive for how to treat delusions in insanity cases and assesses the validity and reasonableness of courts’ application of the law. Most U.S. jurisdictions employ an insanity test roughly modeled on the rule articulated in the 1843 M’Naghten’s Case. This test focuses on a defendant’s inability to know, because of a mental disease, the nature of her act or its wrongfulness. But the M’Naghten judges also issued a second rule — particular to delusions — that has received much less attention. This rule holds that, when the defendant labors under a “partial delusion …

W(H)Ither Judgment, Elias Leake Quinn

Cardozo Law Review de•novo

Textualists complain that loose rules of statutory interpretation inject uncertainty and inconsistency into judicial resolutions of statutory ambiguity. But by employing an incomplete theory of meaning, pure textualists fail to shore up their decisions. And by disparaging the judgement necessary to navigate complex questions of meaning, they erode trust in the judicial process—the very foundation of the rule of law.

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.