Criminal Law Commons^™

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Publications

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

Criminal Juries In The 21st Century: A Case-Study Introduction To Contemporary Issues, Margaret C. Stevenson, Cynthia J. Najdowski

Psychology Faculty Scholarship

In this introductory chapter, we provide an overview of the goals of the present volume and a preview of the individual chapters herein. Specifically, we review research on various understudied and cutting-edge topics related to the intersection of psychological research and criminal jury decision making. This research is placed in the real-world context by relating it to actual criminal cases that exemplify each topic addressed in the volume. A common theme reflected throughout the chapter is an emphasis on understanding how current issues related to societal attitudinal shifts, technological advances, and juror experiences affect the structure, function, and performance of …

The Indecency And Injustice Of Section 230 Of The Communications Decency Act, Mary Graw Leary

Scholarly Articles

Section 230 of the Communications Decency Act is a 1996 law wholly inadequate to address 21^st Century problems. The most egregious example of this is online sex trafficking, which was allowed not only to exist, but also to thrive due, in large part, to §230. This Article examines the development of the jurisprudence regarding online advertising of sex-trafficking victims and juxtaposes the forces that created § 230 with those preventing its timely amendment. This Article argues that, although § 230 was never intended to create a regime of absolute immunity for defendant websites, a perverse interpretation of the non-sex …

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

Scholarly Articles

Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to …

Justice Outside Of Criminal Courtrooms And Jailhouses, In Arcs Of Global Justice: Essays In Honour Of William A. Schabas (Margaret M. Deguzman & Diane Marie Amann Eds., 2018), Mark A. Drumbl

Books and Chapters

This chapter examines alternate forms of transitional justice, notably, customary forms of dispute resolution, restitution, reparations, amnesties, and civil sanctions. It suggests that the international community’s preference for criminal trials as accountability mechanisms in the aftermath of genocide results in the ‘othering’ of these alternate forms of justice. Such ‘othering’ narrows legal pluralism to questions of the location of criminal process and the imposition of custodial punishment (who prosecutes, who sentences?), rather than a richer examination of how deployment of a conceptual diversity of overlapping mechanisms could promote shared objectives of accountability, justice, and transition.

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

Innovating Criminal Justice, Natalie Ram

All Faculty Scholarship

From secret stingray devices that can pinpoint a suspect’s location, to advanced forensic DNA-analysis tools, to recidivism risk statistic software—the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding these technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and ultimately unnecessary for the production of well-designed criminal justice tools. This Article makes three contributions to the existing literature. First, the Article establishes that trade secrecy now permeates American criminal justice, shielding privately developed criminal justice …

State Of Tennessee V. Kevin E. Trent, Ben Raybin, Juliana Lamar

Belmont Criminal Law Journal

Student comments on the Tennessee Supreme Court decision “State of Tennessee v. Kevin E. Trent”. The central holding vacating the sentence in this case did not establish a new doctrine of law but merely reiterated the holding in Travis that the essential elements of the offense alone cannot justify denial of probation in a probation-eligible offense. The Trent decision should be viewed by trial judges and practitioners primarily as a reminder of that principal. On the other hand, the court broke some new ground in appellate review. Prior decisions established that appellate courts can only uphold a sentence if the …

The Gap Between Martinez And Davila: Serving The Next Generation Of Federal Habeas Corpus Cases, Lexie Ward

Belmont Criminal Law Journal

During the summer of 2017, the United States Supreme Court announced a decision in Davis v. Davila, which bars substantial claims of ineffective assistance of appellate counsel that have been procedurally defaulted. However, despite the merits of limiting the number of cases which were not diligently pursued by an inmate, the Court states its conclusion too broadly and now effectively bars a prisoner from bringing claims of significant trial error in front of any court. A prisoner’s claim that was not available until a trial-level appeal, and was then avoided due to ineffective post-conviction counsel, may now be dodged by …

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

Remedial Reading: Evaluating Federal Courts’ Application Of The Prejudice Standard In Capital Sentences From “Weighing” And “Non-Weighing” States, Sarah Gerwig-Moore

Articles

On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This …

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Police, Heroes, And Child Trafficking: Who Cries When Her Attacker Wears Blue?, 18 Nev. L.J. 1007 (2018), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

No abstract provided.

Criminalizing (Poor) Fatherhood, Cortney E. Lollar

Law Faculty Scholarly Articles

States prosecute and incarcerate thousands of fathers every year for failing to pay their child support obligations. Ostensibly, these prosecutions aim to foster the health and well-being of children without requiring the child’s mother to bear the costs of raising the child alone. What may appear on the surface to be a system that balances out inequities is actually a deeply flawed government program—one that promotes criminal recidivism and reinforces the poverty of indigent fathers. Contrary to the common image of a “deadbeat dad” raking in money and staying on the lam to avoid helping a mother raise their child, …

Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross

Faculty Law Review Articles

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without …

The Innocence Movement And Misdemeanors, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

In recent years, the Innocent Movement has begun to focus its attention on wrongful misdemeanor convictions as a systemic problem. This Article analyzes eighty-five documented misdemeanor exonerations and concludes that innocence has been demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal “no controlled substance” despite the individual having pled guilty to misdemeanor drug possession; and police body camera or citizen videos that surface after a misdemeanor conviction to contradict the factual basis for that conviction. Strategic use of these relatively definitive methods of revealing wrongful misdemeanor convictions can call attention to the flaws in misdemeanor …

Book Review, Thomas Morawetz

Faculty Articles and Papers

Reviewing Daniel S. Medwed ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent, Cambridge: Cambridge University Press, 2017 and Sharon Dolovich and Alexandra Natapoff eds., The New Criminal Justice Thinking, New York: New York University Press, 2017.

Big Data Policing And The Redistribution Of Anxiety, Kiel Brennan-Marquez

Faculty Articles and Papers

By equipping police with data, what are we trying to accomplish? Certain answers ring familiar. For one thing, we are trying to make criminal justice decisions, plagued as they often are by inaccuracy and bias, more refined. For another, we are trying to boost the efficiency of governance institutions-police departments, prosecutor's offices, municipal courts-that operate under the pall of scarcity.

For the moment, I want to put answers like these to one side; not because they are wrong, but because they seem like only part of the story. Another goal of big data policing, in addition to those just described, …

Brock Turner: Sorting Through The Noise, Michael Vitiello

University of the Pacific Law Review

No abstract provided.