Criminal Procedure Commons^™

The Ballad Of The "White" Collar Criminal: An Examination Of The Intersection Of Race And Gender In Federal White-Collar Sentencing And Possible Implications Of The Findings, Taylor Tesher

Cardozo Journal of Equal Rights & Social Justice

The note argues that racial and gender disparities exist in federal white-collar crime sentencing, particularly affecting Black women, who often receive harsher sentences compared to their white counterparts. It highlights cases like Felicity Huffman and Kelley Williams-Bolar to illustrate these disparities and calls for reforms to address the lack of transparency and consistency in sentencing.

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Introduction: Two Perspectives On Sara Mayeux’S Free Justice, Brooke Simone, Aditya Vedapudi

Michigan Law Review

A Review of Free Justice: A History of the Public Defender in Twentieth-Century America. By Sara Mayeux.

Shadow Nursing Home Ownership: How A Failure In Government Oversight Of For-Profit Nursing Homes In New York Has Allowed Profits To Balloon And Standards Of Care To Plummet, Marissa Espinoza

Cardozo Journal of Equal Rights & Social Justice

Complex corporate nursing home structures have become commonplace in for-profit nursing home ownership. These structures, designed to shield owners from regulation and liability, allow owners to evade public scrutiny by obscuring the identify of true owners and allow the true owners to direct revenue to other companies they own or benefit from, such as staffing agencies, payroll businesses, and management companies. This has led to a deterioration in the standard of care for nursing home residents, society's most vulnerable population, while providing a boon in profits for the true owners. Money that should be spent on care is instead diverted …

Bans With No Bite: Why Racial Profiling Bans Are Unable To Create Racial Justice In Policing, Rebecca Yin

Cardozo Law Review

No abstract provided.

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

The Progressive Love Affair With The Carceral State, Kate Levine

Articles

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

Llegaron Los Federales: The Federal Government’S Prosecution Of Local Criminal Activity In Puerto Rico, Emmanuel Hiram Arnaud

Faculty Scholarship

In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baradaran Baughman, Christopher Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

Unshackled: Stories Of Redemption Among Serious Youth Offenders, Julie E. Mcconnell

Richmond Public Interest Law Review

In a series of decisions concerning child defendants, the United States Supreme

Court has embraced the understanding, based on adolescent brain

development, that the legal system must recognize children are different than

adults concerning criminal culpability and sentencing. That recognition, culminating

in Miller v. Alabama and Montgomery v. Louisiana, led to the opportunity

for thousands of individuals across the country, initially sentenced

to death-in-prison sentences when they were minors, to gain a meaningful

opportunity for release. These cases permanently banned mandatory life sentences

for children. In Virginia, the legislature now allows reconsideration

of these cases through hearings before the parole …

Empowering The Defense To Confront The Government's Powers: Virginia Criminal Justice Legal Reform, Bryan Kennedy, Catherine F. Zagurskie

Richmond Public Interest Law Review

During the 2021 Session and 2021 Special Session, Virginia took steps to

restore the balance between individuals ensnared in the criminal legal system

and the government. These new laws allow people who are involved in

the criminal legal system to emphasize their humanity and to hold the government

to its various burdens at all stages of the case, including pre-trial,

trials, sentencing, and appeal. This article discusses four of the most important

changes to Virginia law that ensure a more level playing field between

the government and the accused.

First, eliminating the presumption against bail challenges the government’s

power of …

Recognition And Enforcement Of Foreign Interim Measures (Scientific And Theoretical Aspect), Mansurov Artem

ProAcademy

It is known that in the past few years, the Uzbek offense has been actively reforming the economic procedural and arbitration procedural criminal prosecution in search of new effective economic and judicial remedies. In the applied aspect of civil and economic/economic procedural law, interest in the difficulties and suppression of local offenses. At the same time, from the study of the recognition and enforcement of foreign interim measures as a means of protection and its study in the countries of the Romano-Germanic distribution system in Uzbekistan, it has a large number of problems of a practical, one might say, and …

Sticky Situations: Understanding The Law And Life, Krystal Banks

National Youth Advocacy & Resilience Conference

Law and life go hand in hand. Understanding the law and how it connects to life can be an effective tool in teaching youth and adults the value of making good decisions when it comes to life and the law. Sticky Situations places real-world situations in the context of learning how to apply the law and effectively respond to life's sticky situations.

Comparative-Legal Analysis Of Legislation On Appeals Of Individuals And Legal Entities In Prosecution Bodies Of Foreign Countries, Zokirov Sherzod Ilxom O’G’Li

ProAcademy

The article analyzes the legislation on appeals of individuals and legal entities of advanced developed countries and member states of the Commonwealth of Independent States. In the comparative legal analysis of the legislation of these countries, the place of the prosecutor’s offices in them in the state register is emphasized by dividing them into groups with special attention. This article presents a scientific, theoretical and practical study of the implementation of national legislation on the appeals of individuals and legal entities of the Republic of Uzbekistan on the positive aspects contained in their normative legal acts, in the presentation of …

Jury Nullification As A Spectrum, Richard Lorren Jolly

Pepperdine Law Review

Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this conception, with some painting nullification as democratic and others as anarchic. But this debate is largely unmoored from experience. In practice, courts have formally eliminated the jury’s authority to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist. In no other context is a …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Sb 174: Revising Georgia's List Of Bail Restricted Offenses, Natalie E. Delatour, Lauren Meeler

Georgia State University Law Review

The Act amends Georgia’s law relating to the general provisions regarding bond and recognizances by revising the list of bail restricted offenses through the addition of both misdemeanor and felony crimes. The Act authorizes appointed judges who are fulfilling a vacancy of an elected judge to issue certain bonds and an unsecured judicial release in certain circumstances.

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Solidifying Supremacy Clause Immunity, Leslie A. Gardner, Justin C. Van Orsdol

William & Mary Bill of Rights Journal

States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

William & Mary Law Review

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Neuroscience, Criminal Sentencing, And Human Rights, Elizabeth Shaw

William & Mary Law Review

This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

William & Mary Law Review

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Researching The Legal Culture Of The Bureaucracy: An Introduction To Ethnographic Study Of Procedural Criminal Law (Meneliti Budaya Hukum Aparat: Sebuah Pengantar Tentang Etnografi Dalam Studi Hukum Acara Pidana), Fachrizal Afandi

The Indonesian Journal of Socio-Legal Studies

This article presents the development of ethnographic research to understand the culture and performance of criminal justice actors (i.e. police, prosecutors, judges, probation officers). This article begins by outlining the lack of socio-legal research in Indonesian criminal justice research, which results in a scarcity of academic contributions to criminal justice reform. This article then provides an introduction to how the socio-legal approach influences criminal law research and how the ethnographic approach contributes to the study of criminal justice. Before the final section of this article, I discuss the challenges of conducting ethnographic research and suggestions based on my experience as …

Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo

Vanderbilt Journal of Transnational Law

Questioning witnesses is essential for both fact-finding and ensuring the defendant's right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China's Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China's trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

International Treaty As A Basis For The Recognition And Enforcement Of Foreign Interim Measures, Mansurov Artem

ProAcademy

The article examines in detail an international treaty as a basis for the recognition and enforcement of foreign interim measures, in addition, the author came to the conclusion that the Economic Procedural Legislation of Uzbekistan in chapter 33 of the EPC RU regulates proceedings in cases of recognition and enforcement of decisions of foreign courts and arbitrations, however, such foreign judicial acts as interim measures in any form are not regulated. In addition, the recently adopted legislation on international commercial arbitration - LRU 674 of February 16, 2021, despite the fact that its norms contain the regulation of interim measures …