Criminal Law Commons^™

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …

"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik

Dignity: A Journal of Analysis of Exploitation and Violence

This article offers feminist arguments for the reconsideration of consent as a legal concept, informed by insights gained through the work of the #MeToo movement and other feminist campaigns. It suggests that consent may be seen as legally compromised in certain contexts of structured gender inequality, such as domestic violence, workplace sexual harassment, and prostitution. The legal understanding of consent in such contexts is antithetical to the conception of consent as “freely and voluntarily” given within a mutual sexual relationship. This understanding of consent underpins the recent introduction of the Nordic model approach into Irish law through the Criminal Law …

The Female Face Of Misogyny: A Review Of Decriminalizing Domestic Violence: A Balanced Policy Approach To Intimate Partner Violence By Leigh Goodmark And The Feminist War On Crime: The Unexpected Role Of Women's Liberation In Mass Incarceration By Aya Gruber, Dianne L. Post

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Circumventing The Crime Victims' Rights Act: A Critical Analysis Of The Eleventh Circuit's Decision Upholding Jeffrey Epstein's Secret Non-Prosecution Agreement, Paul Cassell, Jordan Peck, Bradley Edwards

Utah Law Faculty Scholarship

Whether crime victims have rights before formal criminal charges are filed has recently come to the fore in one of the most publicized criminal cases in recent memory. For more than twelve years, victims of Jeffrey Epstein’s sex trafficking organization have attempted to invalidate a non-prosecution agreement (NPA) entered between Epstein and federal prosecutors. The victims have argued that because prosecutors deliberately concealed the NPA from them, the prosecutors violated the federal Crime Victim’s Rights Act (CVRA). On April 14, 2020, a divided panel of the Eleventh Circuit entered a surprising ruling, rejecting the victims’ argument. The panel refused to …

Criminal Procedure: Sentence And Punishment, Allison Kretovic, Insoo Lee

Georgia State University Law Review

The Act repeals certain provisions regarding the sentencing of defendants for crimes involving bias or prejudice and provides both criteria for punishment for those crimes and required reporting of those crimes.

Criminal Law, John A. Regan

Mercer Law Review

This Article reviews opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2019, up until May 21, 2020.This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes, and it serves as a broad guideline to how these decisions will affect their practices.

Irreparably Corrupt And Permanently Incorrigible: Georgia’S Procedures For Sentencing Children To Die In Prison, Rachel Ness-Maddox

Mercer Law Review

Right now, two teenagers live in Georgia prisons, knowing they will be incarcerated for the rest of their lives.Countless adults are serving sentences of life without the possibility of parole (LWOP) for crimes they, too, committed when they were teenagers. It is difficult to find in officially‑reported data adults serving sentences they received for crimes they committed while children. This is because, once the two teenagers specifically noted in the Georgia Department of Corrections’ Inmate Statistical Profileturn twenty, they will move to the next data bracket for imprisoned people between the ages of twenty and twenty‑nine, just as all the …

Never Mistake Law For Justice: Releasing Indigent Defendants From Legal Purgatory, R.K. Brinkmann

Washington Law Review

Washington courts impose two mandatory legal financial obligations (LFOs) on almost anyone who pleads guilty to or is convicted of a crime: a $100 DNA sample fee and a crime victim penalty assessment of $250 for misdemeanors and $500 for felonies. These fines run afoul of the Social Security Act, which bars attachment of Social Security benefits to pay debts, including LFOs. As a result, defendants whose sole source of income is Social Security benefits are not obligated to pay their mandatory LFOs. But such defendants cannot obtain certificates of discharge to clear their conviction records and thus complete their …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Predictable Punishments, Brian Galle, Murat C. Mungan

Faculty Scholarship

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that …

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Faculty Scholarship

Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …

Comparing Corporeal Lineups To Photo Arrays, Andrew J. Costello, Blair Hoplight, Maria Lombardo

Journal of Criminal Justice and Law

An eyewitness identification study of a simulated theft of a laptop in a lecture hall was conducted in a northeastern university. After five days, 148 subjects attempted to identify the suspect from either a lineup or a photo array. Corporal lineups and video lineups were conducted in addition to traditional static photo arrays and a new “dynamic photo array” consisting of the use of front, left profile, and right profile images presented in an animated sequence within the standard six-pack photo array. No significant differences between correct identification, misidentification, and non-selection were found between any of the identification methods used. …

Book Review: "Privilege And Punishment: How Race And Class Matter In Criminal Court" By Matthew Clair, Kevin Buckler

Journal of Criminal Justice and Law

Matthew Clair, a sociologist at Stanford University, has written a timely and salient book that describes in intricate detail how the attorney-client relationship between lawyer and defendant reproduces race- and class-based disparities in a criminal court. The book, “Privilege and Punishment: How Race and Class Matter in Criminal Court,” published by Princeton University Press, examines just over 60 criminal defendants’ cases and how these defendants interacted with the criminal courts in Boston. It is an interesting and important read for lawyers and judges who practice in criminal courts, scholars and students of criminal justice, and anyone interested in …

Weber And Judicial Legitimacy: A Critical Analysis Of The U.S. Supreme Court Immigration Cases Nielsen V. Preap (2019) And Barton V. Barr (2020), Frances P. Bernat, Craig Curtis, Rebecca Davalos

Journal of Criminal Justice and Law

This paper analyzes the legitimacy of two U.S. Supreme Court decisions, Nielsen v. Preap and Barton v. Barr, against the principles expressed in Max Weber’s theories regarding rational legal order and judicial legitimacy. The legitimacy of our judiciary depends on the public perception that it is a politically neutral, non-partisan arbiter of the rule of law in our society. When the Court is perceived as serving partisan interests, or promoting arbitrary action by the executive branch, its legitimacy is threatened. After careful exploration of the value of an impartial and politically neutral judiciary, as seen through the lens of …

An Exploratory Study Of Occupational And Secondary Traumatic Stress Among A Mid-Sized Public Defenders’ Office, Elizabeth Dotson, David C. Brody, Ruibin Lu

Journal of Criminal Justice and Law

The impact of stress on the mental and physical well-being of criminal justice professionals is of critical import for the effective operation of the criminal justice system. While a number of studies have examined various forms of stress among law enforcement and correctional officers, minimal research has examined the presence and impact of stressors among individuals working in the criminal courts. This exploratory study examines whether indigent defense attorneys suffer from occupational stress and secondary traumatic stress. A survey of attorneys from a mid-sized public defender’s office were found to have symptoms of severe occupational stress as well as high …

Survivor: An Analysis Of The Term From India, Pravin Patkar

Dignity: A Journal of Analysis of Exploitation and Violence

This article discusses the need for greater conceptual clarity of the term survivor. It raises questions about the propriety of the term to refer to the victims of sex trafficking. It points out that in the Indian context, the term victim is legally and operationally defined. It cautions against the hasty incorporation of the term survivor into public policies addressing the trafficked victims' problems. Different social platforms use the term survivor differently, and the difference is not nominal. The use of the term survivor is both casual as well as intentional. The term survivor trivializes the exploitation and makes invisible …

Decriminalizing Prostitution: Embracing The Swedish Model By Removing The Mistake-Of-Age Defense From New York’S Stop Violence In The Sex Trade Act, Carley Cooke

Journal of Law and Policy

In recent years, New York has re-focused on the widely debated topic of how to best manage and regulate prostitution in the United States. As a state-level issue, the debate presents an invaluable opportunity to re-examine how New York as a society views sex work. The answer in New York focuses on the idea that sex work is real work, where workers should be able to carry out their profession without stigma or fear of arrest. As it stands, the proposed reform largely focuses on decriminalizing both the purchase and sale of sex. This approach contrasts with the legal structure …

Detecting Mens Rea In The Brain, Owen D. Jones, Read Montague, Gideon Yaffe

Vanderbilt Law School Faculty Publications

What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization …

The Use Of Similar Fact In Criminal Proceedings: An Updated Framework, Siyuan Chen

Research Collection Yong Pung How School Of Law

When confronted with the question of whether to admit similiar fact for criminal cases, courts in Singapore are often faced with balancing potentially competing norms in the form of evidential expediency and fairness to the accused. Specifically, although similiar fact may help establish the ingredients of an offence, there existis a real risk that any resulting conviction of the accused and this potential weakness in inferential reasoning through indirect proof will - to use the word in its broadest sense - predjudice the accused.