Criminal Law Commons^™

Federal Sentencing: The Need For A New Test For The Abduction Enhancement In The Context Of Robbery, Alex Leroy

West Virginia Law Review

The abduction enhancement applied to the crime of robbery is inherently ambiguous; the enhancement reads, “‘abducted’ means that a victim was forced to accompany an offender to a different location.” The lack of a clear definition for “location” has caused a split within the federal circuits, with some circuits interpreting “location” as position and others interpreting “location” as place. This has caused disproportionate sentences for similar criminal conduct within separate circuits, creating the need for a more uniform interpretation of the sentencing enhancement for abduction.

This Note builds upon the work of David J. Sandefer and proposes two additional factors …

Indigenous Self-Government And Criminal Law: The Path Towards Concurrent Jurisdiction In Canada, Michael Michel

Dalhousie Law Journal

This is a special contribution that has not been peer-reviewed.

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. …

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

Malware, A Device Under The 1988 Sua Convention, Michael Petta

International Law Studies

In 1988 the International Maritime Organization modernized international law in response to a vexing problem of the time—maritime terrorism. Before then, not all violent crimes against vessels amounted to piracy and therefore many maritime criminals escaped justice. To close this gap and facilitate the prosecution of those who endanger navigation, IMO member States enacted the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. More than three decades later, the 1988 SUA Convention may be useful to address a more modern problem—cyberattacks against commercial vessels. The 1988 treaty prohibits various acts against shipping, including the …

Understanding Mass Incarceration In The Us Is The First Step To Reducing A Swollen Prison Population, Jeffrey Bellin

Popular Media

No abstract provided.

Statement Of The District Task Force On Jails & Justice Before The Committee On The Judiciary And Public Safety Of The Council Of The District Of Columbia Performance Oversight Hearing For The D.C. Department Of Corrections March 1, 2023, Katherine S. Broderick

D.C. Council Testimony

No abstract provided.

The Structure Of Criminal Federalism, Erin C. Blondel

Notre Dame Law Review

Scholars and courts have long assumed that a limited federal government should stick to genuinely “federal” crimes and leave “local” crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime, and federal prosecutors regularly do seemingly “local” cases. Despite nearly unlimited paper jurisdiction, however, the federal enforcement footprint has remained tiny and virtually static for a century. Something is strongly limiting the federal system, just not differences in substantive coverage.

The answer is different enforcement responsibilities. The police power means states alone provide basic public safety and criminal justice. Rather than …

The Legacy Of Trayvon Martin—Neighborhood Watches, Vigilantes, Race, And Our Law Of Self-Defense, Mark S. Brodin

Marquette Law Review

Reflecting back a decade later, what is the enduring significance of the Trayvon Martin case—a Black teenager whose life is violently cut short, and a legal system that accepted his death without consequence? The poet Elizabeth Alexander speaks of “The Trayvon Generation” of Black youth who have grown up in the haunting shadow of his killing, and the anguished parents who cannot protect their children from such a fate. America’s first Black president spoke for them: “When I think about this boy, I think about my own kids. If I had a son, he’d look like Trayvon,” Barack Obama told …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Continuing Principled Sentencing Reform And Winding Back Mass Incarceration Against The Backdrop Of America’S Surge In Violent Crime, Mirko Bagaric, Jennifer Svilar, Brienna Bagaric

Nevada Law Journal

No abstract provided.

Reforming Prior Conviction Impeachment, Anna Roberts, Julia Simon-Kerr

Faculty Scholarship

No abstract provided.

From The Editors In Chief, Kathleen Claussen, Sergio Puig, Michael Waibel

Articles

No abstract provided.

Policing Pregnancy "Crimes", Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds …

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

Grandma Got Arrested: Police, Excessive Force, And People With Dementia, Rashmi Goel

University of Richmond Law Review

Recent events have shone a light on the particular vulnerability of people with dementia to police violence. Police are arresting people with dementia and using excessive force to do it—drawing their firearms, deploying tasers, and breaking bones.

To date, little attention has been paid to the burgeoning number of people with dementia, one of society’s most vulnerable populations, and their experiences with the criminal justice system. This Article examines how dementia leads people to engage in activity that appears criminal (shoplifting (forgetting to pay), and trespass (wandering), for instance) and the disproportionate response of police. In several cases where people …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

University of Richmond Law Review

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …