Criminal Law Commons^™

Labor Redemption In Work Law, Andrew Elmore

Faculty Scholarship

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks

This Article challenges this standard account by shifting focus to the state in imposing …

Re-Victimization Of Domestic Violence Victims, Angela De La Garza

Brigham Young University Journal of Public Law

No abstract provided.

No Longer Innocent Until Proven Guilty: How Ohio Violates The Fourth Amendment Through Familial Dna Searches Of Felony Arrestees, Jordan Mason

Cleveland State Law Review

In 2013, the United States Supreme Court legalized DNA collection of all felony arrestees upon arrest through its decision in Maryland v. King. Since then, the State of Ohio has broadened the use of arrestee DNA by subjecting it to familial DNA searches. Ohio’s practice of conducting familial DNA searches of arrestee DNA violates the Fourth Amendment because arrestees have a reasonable expectation of privacy in the information that is extracted from a familial DNA search and it fails both the totality of the circumstances and the special needs tests. Further, these tests go against the intention of the …

Domestic Violence In Criminal Courts: The Larger Implications For Victims, Jason Johnson

Bridges: An Undergraduate Journal of Contemporary Connections

Academics have considered the treatment of domestic violence in Canada inadequate (Bell, Perez, Goodman, & Dutton, 2011) and “…an indicator of society's inattentiveness to violence against women…” (Garner & Maxwell, 2009, p. 44). Van Wormer (2009) further notes that there is still “…widespread dissatisfaction by battered women … and their advocates with the current system…” (p. 107). While much of the literature focuses on early aspects of the criminal justice system (police action, decision to prosecute, for e.g.), few authors have sought to understand victims opinions about the trial process (Hare, 2010; Smith, 2001). This paper conducts a literature review …

Law School News: 'Law Isn't A Foreign Language Anymore' 11/24/2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Beyond Compare: A Codefendant's Prison Sentence As A Mitigating Factor In Death Penalty Cases, Jeffrey L. Kirchmeier

Florida Law Review

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.

The U.S. Supreme Court has repeatedly stressed the important of mitigating factors in capital cases. For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating. But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant's …

Life In Jail For Misbehavior: Criminal Contempt And The Consequence Of Improper Classification, Kaley Ree Jaslow

Florida Law Review

Contempt is a crime that can be traced back to twelfth century England. It was an offense of disobedience that caused the obstruction of justice, and the punishment of such crimes was deeply important to the English justice system. Subsequent to the American Revolution, early American courts retained the use of contempt. Today, in the United States, criminal contempt is a federal crime under 18 U.S.C. § 401. Despite the federal code, actions that exemplify contempt are not specifically defined by statute. Judges are granted broad discretion in determining which actions are contemptuous and which are not. Moreover, federal criminal …

Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston

Florida Law Review

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as …

Coordinating Community Reintegration Services For “Deportable Alien” Defendants: A Moral And Financial Imperative, Amy F. Kimpel

Florida Law Review

Recidivism rates for individuals who are convicted of illegal entry and re-entry (U.S.C. §§ 1325 and 1326) are quite high despite post-sentencing deportations. The “holistic defense” model developed in New York City at the Neighborhood Defender Services and Bronx Defenders has been instrumental in achieving better outcomes for criminal defendants and their communities, in large part due to an emphasis on re-entry or reintegration services for defendants being released from incarceration. However, that model is difficult to implement when applied to noncitizen defendants who are to be deported. This Article argues that some attention to re-entry services for deportable non-citizen …

Taming Self-Defense: Using Deadly Force To Prevent Escapes, Robert Leider

Florida Law Review

The modern fleeing felon rule permits police officers to use deadly force when necessary to prevent the escape of a person who has committed a violent felony. To justify this rule, the Supreme Court has relied on self-defense and defense of others. This Article argues against the self-defense justification. Fleeing felons—even those suspected of violent crimes—are not imminent threats to others solely by virtue of their flight. Stretching self-defense doctrine to justify the fleeing felon rule undermines critical limitations on private self-defense and has not produced an effective set of rules to limit police violence.

This Article further argues that …

Does Bitcoin Use Affect Crime Rates?, Kevin Keane

The Corinthian

Bitcoin is the most widely used cryptocurrency in the world because of its decentralized network that completes user-to-user transactions, eliminating the need for intermediaries. During 2017, the volume of Bitcoin transactions totaled $94.3 trillion. Bitcoin transactions are recorded in a public database called the blockchain. Although the blockchain can keep track of how many transactions there are, it can’t identify the people involved in transactions. The lack of identity increases the anonymity of Bitcoin transactions, making it less detectable when used for crime. Using the Uniform Crime Reporting’s state-level crime rate data and blockchain’s Bitcoin transaction information, I estimate the …

Going Rogue: Independent Grand Juries Throughout America, Nino Monea

Maine Law Review

Grand juries today do little more than passively approve (almost never disapprove) indictments proposed by prosecutors. But this stands in stark contrast to grand juries in the past. They investigated cases themselves and their purview went well beyond criminal matters. This Article looks in-depth at three historical cases where grand juries not only conducted major investigations but took on major additional roles. They ousted corrupt public officials, ran their cities in the interim, or booted prosecutors that failed to do their jobs. These examples demonstrate that grand juries in modern society could have a more robust role in the justice …

Combating Environmental Pollution - A Study Of The Legislation Of The United Arab Emirates, Dr. Emadeldin Mohamed Kammel Abdulhamed

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

The problem of environmental pollution is one of the most important problems that plague most countries of the world, especially in light of the feverish race by those countries to obtain scientific, industrial and technological progress, and information and communication technology, and the consequent adverse effects on the elements of the natural and industrial environment alike. And the belief that a pollution - free environmental environment is impossible to achieve, especially as the elements of the environment are intertwined with soil, water and air. Any pollution of any element that extends easily to the rest of the elements may even …

Forecasting Crime? Algorithmic Prediction And The Doctrine Of Police Entrapment, Mathew Zaia

Canadian Journal of Law and Technology

As the Commissioners of Police in mid-19th century England illustrate above, the prevention of crime is an inherent function of public policing. To carry out their function of detecting and combating crime, police frequently endeavour to locate and use new tools enabling them to pre-empt criminal activity.2 Many conceptual policing models that drive law enforcement’s focus have been highlighted in scholarly literature: community, problem-oriented, CompStat- driven (short for computer statistics), harm-focused, and order maintenance policing. Developments in modern technology provide additional tools, allowing police forces to delve deeper into suspects’ behaviour and uncover previously unknown patterns of information. Such developments …

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

Criminal Trespass And Computer Crime, Laurent Sacharoff

William & Mary Law Review

The Computer Fraud and Abuse Act (CFAA) criminalizes the simple act of trespass upon a computer—intentional access without authorization. The law sweeps too broadly, but the courts and scholars seeking to fix it look in the wrong place. They uniformly focus on the term “without authorization” when instead they should focus on the statute’s mens rea. On a conceptual level, courts and scholars understand that the CFAA is a criminal law, of course, but fail to interpret it comprehensively as one.

This Article begins the first sustained treatment of the CFAA as a criminal law, with a full elaboration of …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …