Criminal Law Commons^™

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

No abstract provided.

Cedaw And Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker And Root Causes Of Abuse, Cheah W. L.

Michigan Journal of International Law

CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only …

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

McGeorge School of Law Scholarly Articles

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

"Only To Have A Say In The Way He Dies": Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Scholarly Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Putting The "P" In Pfa: The Electronic Monitoring Of Protection From Abuse Respondents In Pennsylvania, Cameron Kehm

Duquesne Law Review

Domestic violence violently claimed Alina Sheykhet's life, despite alleged "protection" from a Protection from Abuse Order ("PFA").¹ Far from being an exception, Alina's story is yet another example among many cases that show how traditional protective order systems fail those who need protected most.² However, Alina's Law can protect PFA holders through a new remedy: the electronic monitoring of PFA respondents.³ Although Alina's Law failed to make it out of committee consideration during the 2019-2020 term,⁴ with three modifications, legislators can reintroduce Alina's Law in a passable form that would protect Pennsylvania's most vulnerable citizens.

Part …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte

Scholarly Articles

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for that provision …

The Common Prosecutor, Melanie D. Wilson

Loyola University Chicago Law Journal

This symposium piece stems from the Loyola University of Chicago Law Journal's Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October 2020, …

A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

JCLC Online

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

Immigration Public Defenders: A Model For Going Beyond Adequate Representation, Matthew Chang

JCLC Online

What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in …

When A Second Change Gets A Second Chance: Reasonableness Review Reigns For Motions Under Section 404 (B) Of The First Step Act On Appeal, Patrick W. Riley

American University Law Review

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine. Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine. In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1. However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act. Those already sentenced under the 100:1 ratio were …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington

Upper Level Writing Requirement Research Papers

No abstract provided.

Liberty And Just [Compensation] For All: Wrongful Conviction As A Fifth Amendment Taking, Kelly Shea Delvac

Connecticut Law Review

In the United States, over 2,900 people have been exonerated for crimes they did not commit. While some exonerees currently qualify for compensation for their wrongful convictions, less than 40% have received any type of financial support. This Note examines the history of wrongful convictions in America as well as the historical background of the Fifth Amendment. It then looks at the current compensation schemes available to exonerees and analyzes the evolution of takings jurisprudence. This Note argues that a wrongful conviction is a taking of an exoneree’s labor under the Fifth Amendment and, therefore, constitutionally entitles an exoneree to …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Connecticut Law Review

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 …

When Jail & Prison Sentences Become Death Sentences: How Willfully Exposing Incarcerated Persons To Covid-19 Amounts To Cruel & Unusual Punishment, Arielle Aboulafia

Human Rights Brief

Eric Warner called his older brother Hank from San Quentin State Prison almost every Sunday. Though the prison only allowed the brothers to speak for fifteen minutes each week, the two spoke about their lives. In June 2021, Eric stopped calling, and Hank became worried. Hank tried to get in touch with the prison. However, his calls were met with a dead-end voicemail each time. He recalls that he “knew, by not hearing anything, that something was not good.” The following month, prison personnel returned Hank’s calls and told him that his brother Eric had been hospitalized. Later that month, …

Capital Punishment And The ‘Acnestis’ Of Its Modern Reformation, Sudarsanan Sivakumar

Human Rights Brief

The term “Capital Punishment” encompasses any penalizing punishment that results in the death of people accused of committing a crime.1 This damnation dates back to the Eighteenth Century B.C. in the “Code of Hammurabi,” a misemployed code that ensured the death penalty for twenty-five distinct crimes. People convicted of crimes were made to suffer for their actions in horrific ways, including being burnt alive and drowning.2 Since then, death by hanging has been the conventional method for capital punishment in most of the world.