Legal Studies Commons^™

Crafted From Whole Cloth: Reverse Stash-House Stings And The Sentencing Factor Manipulation Claim, Molly F. Spakowski

Buffalo Law Review

Kenneth Flowers is currently serving a mandatory minimum sentence of 120 months imprisonment stemming from a conviction of conspiracy to possess with intent to distribute five or more kilograms of cocaine. While the ten-year prison sentence is very real, the five-kilograms of cocaine is not, and never was. Mr. Flowers was caught-up in one of the elaborate and overused “reverse stash-house sting” operations employed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

Mr. Flowers’ story is one of many similar cases resulting from the government operation conducted by the ATF known as a reverse stash-house sting operation. The …

The Policing Of Prosecutors: More Lessons From Administrative Law?, Aaron L. Nielson

Dickinson Law Review (2017-Present)

On a daily basis, prosecutors decide whether and how to charge individuals for alleged criminal conduct. Although many prosecutors avoid abusing this authority, prosecutors’ discretionary decisions might result in biased enforcement, inappropriate leveraging of authority, and a lack of transparency. These problems also arise when agency enforcement officials decide whether to act on conduct that violates a legal prohibition.

An inherent tension between the desire to avoid overburdening the system and the need to prevent inconsistent decision-making exists in the exercises of both prosecutorial discretion and regulatory enforcement discretion. It is clear from the similarities between the two that administrative …

Prosecutorial Misconduct: Mass Gang Indictments And Inflammatory Statements, K. Babe Howell

Dickinson Law Review (2017-Present)

This Article examines inflammatory statements by prosecutors in the context of mass gang indictments. I contend that inflammatory remarks not only harm the justice system and defendants, particularly minorities, but also that, when prosecutors craft and repeat hyperbolic narratives about vicious gang wars, prosecutors may come to believe the narratives and become effectively blinded to the fact that these narratives are improper, unfair, and untrue. First, I review the professional rules, standards, and case law that prohibit. Then, drawing on press releases and trial transcripts from two mass gang indictments in New York City, I demonstrate how prosecution statements exaggerate …

Prosecutorial Discretion: The Difficulty And Necessity Of Public Inquiry, Bruce A. Green

Dickinson Law Review (2017-Present)

Prosecutors’ discretionary decisions have enormous impact on individuals and communities. Often, prosecutors exercise their vast power and discretion in questionable ways. This Article argues that, to encourage prosecutors to use their power wisely and not abusively, there is a need for more informed public discussion of prosecutorial discretion, particularly with regard to prosecutors’ discretionary decisions about whether to bring criminal charges and which charges to bring. But the Article also highlights two reasons why informed public discussion is difficult—first, because public and professional expectations about how prosecutors should use their power are vague; and, second, because, particularly in individual cases, …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

Decarcerating America: The Opportunistic Overlap Between Theory And (Mainly State) Sentencing Practice As A Pathway To Meaningful Reform, Mirko Bagaric, Daniel Mccord

Buffalo Law Review

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is neither coordinated nor consistent in its approach, but the movement is unmistakable. This ground up approach to reducing prison numbers suffers from the misgiving that it is an …

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …

Voices Unheard: Women And Their Children In Nepal’S Incarceration System, Aune Nuyttens, Mikayla Rose

Independent Study Project (ISP) Collection

This research project focused on women in Nepal’s incarceration system. Our goal was to hear and share their stories with the hopes of humanize and de-stigmatize perceptions of female prisoners in and outside of Nepal. A central component to these stories, as we learned, was also the story of prisoner’s children and the NGOs who provide assistance to this vulnerable group of women and their children. The researchers travelled to the east and west of Kathmandu to visit rural and urban prisons in Nepal, and visited various children homes, however the research was based out of Kathmandu, where many of …

De-Escalation: What Does That Mean Anyway?, Pat Nelson

Criminal Justice Department Publications

De-escalation is a common phrase in the media and int he general discourse about the criminal justice system, however, the interpretation can vary. This project examines students' understanding of the definition of de-escalation in professional peace officer education. This presentation took place at the 2019 Academy of Criminal Justice Sciences Annual Meeting in Baltimore, MD on Wednesday, March 27, 2019.

Heien V. North Carolina And Significant Interpretive Court Cases: An Empirical Examination Of Police Officers’ Perceptions And Knowledge, Michael De Leo

Master of Science in Criminal Justice Theses & (Pre-2016) Policy Research Projects

This empirical study examines legal aspects of policing in relation to the recent, landmark United States Supreme Court case of Heien v. North Carolina. In Heien, the Court found that objectively reasonable mistakes of law by police can support traffic stops. By doing so, it extends the permissible margin of error for stops by law enforcement officers. Due to the potential, far-reaching implications of the Heien decision, including implications for law enforcement and for the Fourth Amendment privacy protections of individuals, it is important to better understand how the lower courts have interpreted and applied Heien. Therefore, …

Yale Program On Financial Stability Lessons Learned: Scott Alvarez, Esq., Alec Buchholtz, Rosalind Z. Wiggins

Journal of Financial Crises

Alvarez, who was General Counsel of the Federal Reserve System, Board of Governors during 2007-2009, gives us his take on how best to prepare for future crises.

The Lehman Brothers Bankruptcy G: The Special Case Of Derivatives, Rosalind Z. Wiggins, Andrew Metrick

Journal of Financial Crises

When it filed for bankruptcy protection in September 2008, Lehman Brothers was an active participant in the derivatives market and was party to 906,000 derivative transactions of all types under 6,120 ISDA Master Agreements with an estimated notional value of $35 trillion. The majority of Lehman’s derivatives were bilateral agreements not traded on an exchange but in the over-the-counter (OTC) market. Because derivatives enjoyed an exemption from the automatic stay provisions of the U.S. Bankruptcy Code, parties to Lehman’s derivatives could seek resolution and self-protection without the guidance and restraint of the bankruptcy court. The rush of counterparties to novate …

The Lehman Brothers Bankruptcy F: Introduction To The Isda Master Agreement, Christian M. Mcnamara, Andrew Metrick

Journal of Financial Crises

When Lehman Brothers Holdings, Inc. (LBHI) sought Chapter 11 protection, the more than 6,000 counterparties with which its subsidiaries had entered into over 900,000 over-the-counter (OTC) derivatives transactions faced the question of how best to respond to protect their interests. The existence of standardized documentation developed by the International Swaps and Derivatives Association (ISDA) for entering into such transactions meant that the counterparties likely thought that they were dealing with a well-defined and robust set of options in answering this question. Yet, in practice, the resolution of Lehman’s OTC derivatives portfolio ended up being less orderly than the existence of …

The Lehman Brothers Bankruptcy E: The Effects On Lehman’S U.S. Broker-Dealer, Rosalind Z. Wiggins, Andrew Metrick

Journal of Financial Crises

Lehman’s U.S. broker-dealer, Lehman Brothers Inc. (LBI), was excluded from the parent company’s bankruptcy filing on September 15, 2008, because it was thought that the solvent subsidiary might be able to wind down its affairs in a normal fashion. However, the force of the parent’s demise proved too strong, and within days, LBI and dozens of Lehman subsidiaries around the world were also in liquidation. As a regulated broker-dealer, LBI was required to comply with the Securities and Exchange Commission financial-responsibility rules for broker-dealers, including maintaining customer assets separately. However, the corporate complexity and enterprise integration that characterized the Lehman …

Meaning-Making Through Narrative: Extending Narrative Analysis For Criminological Examination Of Documentary Film, Charissa Crépault Weir

Qualitative Criminology (QC)

"In this paper, I demonstrate how an understanding of narrative and the tools of narrative analysis can help criminologists unpack the techniques of meaning-making employed in media representations, including documentary films about imprisonment. Since media help to shape, though do not determine, public perceptions of crime and criminal justice, it is useful for criminologists to examine not just media content (i.e. what is said), but also how media constructions advance arguments that are presented as self-evidently true. Narrative structure offers one way for journalists to organize content in a persuasive and emotionally appealing manner and to embed arguments and interpretations …

The Social Camouflage And Everyday Masks Of The Constyle Serial Rapist: A Sociological Analysis Of Newspaper Accounts, Clara Fesmire, Thomas Vander Ven, Lauren Wright

Qualitative Criminology (QC)

"Research suggests that serial rapists use more sophisticated techniques and possess more specialized awareness than average single-victim offenders (Park, Schlesinger, Pinizzotto & Davis, 2008). Although there is a substantial body of literature on the attack styles of offenders, data and theoretical models on the interactional styles and performance rituals of serial rapists are relatively scarce. The current study uses a qualitative analysis of major American newspaper accounts to discuss the behavioral patterns and performance styles of the con-style serial rapist as depicted by crime reporters. The con rapist uses deceptive persuasion and everyday disguises ( e.g., posing as a police …

Harlem Pimps' Accounts Of Their Economic Pathways And Feelings Of Insiderness And Outsiderness, Amber Horning, Christopher Thomas, Sara Jordeno

Qualitative Criminology (QC)

"This study analyzes semi-structured interviews with 85 pimps in New York City to explore how pimps discuss their economic pathways - i.e., how their pimping leads to distinct types of work outcomes and how they discuss their associated feelings and attitudes. We compare younger (18-23) to older (24-67) pimps, anticipating that younger participants would be more adaptive and produce discourse less entrenched in outsider thinking. Pimps' movements between licit and illicit work worlds mirror those of drifters (Matza, 1964) and align with Murphy and Robinson's (2008) concept of maximizers (i.e., economically benefiting from both work worlds simultaneously). Younger pimps, despite …

Jeff Ferrell, Drift: Illicit Mobility And Uncertain Knowledge, Travis Milburn

Qualitative Criminology (QC)

"Today, one does not have to look hard for examples of populations in flux. From war refugees abandoning familiar lands for safety to migratory workers in search of economic opportunities, drift is not only a defining feature of the contemporary world, but it is indeed a global phenomenon. In Jeff Ferrell's Drift: Illicit Mobility and Uncertain Knowledge, we see drift in action in North America and experience the history of hoboing through a cultural, social, and political narrative. While there are many readily accessible examples of the phenomenon of drift in the world, this book shows that drift is …

Ethnic Police Humor As Ethnic Boundary-Making In The Swedish Police Force, Sara Uhnoo

Qualitative Criminology (QC)

"All professions display their own specific humor shaped by the occupational culture, type of work, and working conditions defining them. In this article, the role of ethnic jokes and banter in police humor, including their functions and consequences, are investigated drawing upon interviews with Swedish police employees from an ethnic minority background. A typology is developed containing six distinct types of ethnic police humor. Based on it, some of the ways in which ethnic boundary-making occurs and operates within the Swedish police force are analyzed. The consequences of ethnic humor for police work both internally within the police organization and …

Hearing On The Deaf Penalty: The Intersection Of Deafness And Criminal Justice, Kabrianna Tamura, Elaine Gunnison

Qualitative Criminology (QC)

"The Deaf population in America's criminal justice system is far under-acknowledged, researched, and accommodated. Each year, gross negligence toward Deaf individuals results in exponentially costly lawsuits regarding violations of their constitutional and Americans with Disabilities Act (ADA) rights. The purpose of this study is to empirically identify the current deficits experienced by the Deaf within the criminal justice system through 18 qualitative interviews with two sub-populations: Deaf individuals who have directly interacted with the criminal justice system and professionals who witness the interaction of the Deaf within the criminal justice system. Results from the qualitative investigation revealed that the top …

Prosecuting The Executive, Tiffany R. Murphy

San Diego Law Review

A special counsel is appointed to investigate and potentially prosecute any criminal activity involving those in the Executive Branch. When an attorney general makes such a decision, the individual should consider not only the scope of the appointment but whether the special counsel will protect the fundamental rules of law upon which the Constitution rests; no one person is above the law. Recent history illustrates the abuses of the special prosecutor’s role where it was used as a political weapon or for low level officials. Instead, a special counsel should be used only when the crisis is severe enough that …

The Case For Varying Standards Of Proof, Gustavo Ribeiro

San Diego Law Review

This Article defends a system with a greater variation in the number of standards of proof than we currently have as both normatively and descriptively valuable. Standards of proof are mechanisms for allocating the risk of factual error between parties. For example, the heightened “beyond a reasonable doubt” standard in criminal cases reflects an aspiration for a legal system erring more in favor of mistaken acquittals than mistaken convictions. Surprisingly, we then assign the same standard to very different cases under the justification that we accept, or should accept, the same error-distribution for those cases. This Article argues that, however …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

How Two Sunken Ships Caused A War: The Legal And Cultural Battle Between Great Britain, Canada, And The Inuit Over The Franklin Expedition Shipwrecks, Christina Labarge

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Profile Of The International Cyber Offender In The U.S., Lora I. Hadzhidimova, Brian K. Payne

International Journal of Cybersecurity Intelligence & Cybercrime

This study explores the characteristics of international cyber offenders prosecuted in the U.S. Our findings to a large extent correspond with general studies about cyber offenders with a few important exceptions. First, the average age of the offenders in our study is slightly higher than others that do not focus exclusively on international offenders. Second, while this research confirms that China is among the leading country in committing cybercrimes when it comes to committing particular types of cybercrimes, the offenders come from other countries as well such as Romania, Estonia, Ukraine, South Africa, and Nigeria. Third, our results show that …

The Coming Out Of Memory: The Holocaust, Homosexuality, And Dealing With The Past, Arnaud Kurze

Department of Justice Studies Faculty Scholarship and Creative Works

This research discusses the challenges of establishing a collective memory for gay victims of the Nazi terror in World War II and examines the introduction of gay victimhood into the public sphere through memorialization efforts. While scholarly accounts on gays and the Holocaust emerged in the 1970s, little is known about the emergence and consolidation of a public narrative on gay persecutions under the Nazis. It raises important questions, including why a public voice for crimes against sexual minorities in World War II emerged only hesitantly? Drawing on historical gay memorialization processes in Germany, the author maps the obstacles for …

Shared Deliberations: Learning From The Voices Of Social Justice Lawyers On Their Aspirations, Challenges And Roles, Ian Head

Dissertations, Theses, and Capstone Projects

Lawyers in the U.S. who attempt to advocate for social justice issues, often on behalf of those communities most targeted by government institutions and oppressive legal systems, have unique perspectives into the challenges of using the law to create transformative change. This thesis examines the voices of over a dozen attorneys fighting not only on behalf of their clients, but also wrestling with how to best use a set of legal tools not meant for dismantling systems of power. Listening to how these legal advocates navigate their roles inside a system of laws created to consolidate rather than distribute power …

"All The Flowers May Die, But The Thistles Will Live": Sex Trafficking Through The Eyes Of A Police Officer-Researcher, Robert Chrismas

Dignity: A Journal of Analysis of Exploitation and Violence

This article is a description of the research I conducted on the sex industry in Manitoba, Canada, from 2016-2017. I interviewed 61 people, of which six were political leaders, 23 were social workers, 24 were police officers, and eight were sex industry survivors. About half of the practitioners I interviewed are also sex industry survivors. As a veteran police officer with 35 years of law enforcement experience, my research journey was unique from conducting the interviews to reporting my findings. These are some of my experiences and the lessons I learned about gathering and sharing the stories of sex industry …

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.