Criminal Law Commons^™

Criminal Responsibility For Arbitrators In Chinese Law: Perversion Of Law In Commercial Arbitration, Duan Xiaosong

Pace International Law Review

This article is prompted by a recent Chinese criminal provision governing the impartiality of arbitration. The goals of the article fare to critically examine the new criminal statute created by the provision and to put forward some proposals for reform, which could be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the new provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding U.S. provision, as well as an analysis of some cultural …

Social Media Thoughtcrimes, Daniel S. Harawa

Pace Law Review

As people live out their lives online, what is protected expression and what is criminal speech? This article begins to explore this fine distinction, and advocates for a shift in the way online speech is protected vis-à-vis the First Amendment. Part I provides examples of criminalized social media activity and explores why people seemingly treat online speech as private communications. Part II looks at existing jurisprudence regarding the criminalization of speech and First Amendment protections. And Part III attempts to determine where to draw the line by advocating for a return to simpler times in First Amendment jurisprudence.

Death By Bullying: A Comparative Culpability Proposal, Audrey Rogers

Pace Law Review

This article explores the possibility and advisability of imposing homicide charges against bullies, a controversial approach because of the serious causation questions it poses. Nonetheless, there is precedent for holding a person criminally culpable for a victim’s suicide. A notorious case involved the head of the Ku Klux Klan who was convicted of murder after the woman he raped killed herself by swallowing poison, “distracted by pain and shame so inflicted upon her.” Some may see her shame as analogous to gay teens who commit suicide after being bullied about their sexual orientation. But perhaps the law should not demand …

The Constitution And Revenge Porn, John A. Humbach

Pace Law Review

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem …

The Challenges Of Preventing And Prosecuting Social Media Crimes, Thaddeus Hoffmeister

Pace Law Review

The adoption and use of social media by a broad spectrum of criminal defendants has raised some significant challenges for those tasked with crime prevention. This article will look at those challenges through the lens of three cases involving social media: United States v. Drew, United States v. Sayer, and United States v. Cassidy. However, prior to beginning that examination, this article will briefly discuss and categorize the various ways criminal defendants employ social media.

Summary Of Guitron (Miguel) V. State, 131 Nev. Adv. Op. 27 (May 21, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) the State presented sufficient evidence for a jury to convict Guitron of incest and sexual assault, (2) the district court did err by not allowing Guitron to introduce evidence of the victims sexual knowledge, but this error was harmless, (3) the district court did err refusing to give the jury Guitron’s requested inverse elements instruction, but this error was also harmless, and (4) Guitron could not show that the district court erred by denying his Batson challenge.

Systemic Lying, Julia Simon-Kerr

William & Mary Law Review

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that …

Electroshock Injustice Coming To Athens-Clarke County Part 2: More On The "Benefits" Of Police Tasering, Donald E. Wilkes Jr.

Popular Media

This article reviews the Athens-Clarke County police department's arguments in implementing tasers and argues against using them in police enforcement.

Institutionalized Racism And The Death Penalty, Ashleigh Ellis

Student Scholar Symposium Abstracts and Posters

Overtime, support for capital punishment has evolved. Compared to previous decades, support has changed amongst different variables such as: age, race, gender, and political perspective; therefore, today, these variables have changed the amount of support for it. For example, as of today, 6 states have repealed the death penalty with New Jersey being the first in 2007 to do so in 40 years. As memories of Jim Crow and the Civil Rights era have faded due to generational replacement, American society today still has this racial gap, however it is due to this racial resentment or symbolic resentment that the …

Protecting The Constitutional Right To Counsel For Indigents Charged With Misdemeanors - Testimony Of Erica J. Hashimoto Before The U.S. Senate, Erica J. Hashimoto

Presentations and Speeches

Testimony of Professor Erica J. Hashimoto before the United States Senate Committee on the Judiciary on May 13, 2015 about the denial of the right to counsel in criminal misdemeanor cases. Professor Hashimoto's testimony begins at the 56:10 mark.

The Globalization Of Crime Control: The Use Of Non-Criminal Justice Responses For Countering Organized Crime, Bjarni Halldor Sigursteinsson

LLM Theses

This thesis examines domestic authorities’ use of non-criminal justice responses to counter organized crime. Examples of responses used to counter outlaw motorcycle gangs in Canada, Germany, and Iceland are provided. These responses are significantly different from most international efforts focusing on criminal norms and cooperation in criminal matters.

As harmonization of legislation, policies and practices in this field become an international focus, I examine the role currently played by the European Union in promoting these non-criminal justice 'alternative' enforcement strategies for the purpose of furthering the development of international and domestic efforts to counter organized crime.

This study concludes that …

The "Once An Adult, Always An Adult" Doctrine: More Harm Than Good, Kaitlin Pegg

Indiana Journal of Law and Social Equality

This Note focuses on the negative effects of the “once an adult, always an adult” doctrine, one mechanism through which juveniles convicted of a crime can be transferred to adult court. The doctrine, enacted in a majority of states, provides that children who have been previously transferred to adult court by a judge or prosecutor, or because of statutory exclusion of certain crimes from juvenile jurisdiction, will be transferred for all subsequent crimes, regardless of severity.

When juveniles convicted of crimes are transferred to the adult court system, they are subject to a wide array of harsh punishments unavailable in …

Summary Of In Re: L.A.W, 131 Nev. Adv. Op. 24 (May 7, 2015), Jessica Gandy

Nevada Supreme Court Summaries

The Court determined, pursuant to the Fourth Amendment of the U.S. Constitution, as well as Article 1, § 18 of the Nevada Constitution, a public school cannot condition a student’s access to a free public education upon consent to random searches of his person and property. Evidence gathered from random administrative searches must be suppressed in criminal proceedings.

You Have The Right To Remain Silent, But Anything You Don’T Say May Be Used Against You: The Admissibility Of Silence As Evidence After Salinas V. Texas, Andrew M. Hapner

Florida Law Review

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel Alito emphasized that before a suspect can rely on the privilege against self-incrimination, the suspect must invoke the privilege. Consequently, because silence does not invoke the privilege, and because the petitioner failed to expressly invoke the privilege in words, the prosecutor’s use of his pre-Miranda silence during a noncustodial interrogation did not violate the Fifth Amendment. …

Guilt Without Mens Rea: How Florida’S Elimination Of Mens Rea For Drug Possession Is Constitutional, Marc B. Hernandez

Florida Law Review

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the Florida Comprehensive Drug Act removed Florida’s burden of proving one aspect of defendants’ mens rea in drug cases. Although several cases have challenged the Florida Comprehensive Drug Act for disregarding the traditional role of mens rea in criminal law and for subjecting innocent people to prosecution, the state of Florida continues to prosecute and obtain convictions under the statute.

This …

Lost In Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Florida Law Review

Prior approaches to examining attorney speech rights have failed to address pretrial publicity in a manner that protects the criminal justice system and the essential roles of the prosecutor and defense attorney therein, as discussed in Part I. Yet the access-to-justice theory, as discussed in Part II, attunes attorney speech rights to the role of the attorney in the proper and constitutional functioning of the justice system. As discussed in Part III, the very nature of the criminal justice system imposes vastly differing obligations and duties on the prosecution and defense and their respective attorney–client relationships. In Part IV, this …

Trending@Rwu Law: Swapna Yeluri's Post: Baltimore: Ignoring Problems No Longer An Option, Swapna Yeluri

Law School Blogs

No abstract provided.

Commuting Life Without Parole Sentences: The Need For Reason And Justice Over Politics, Jing Cao

SJD Dissertations

In the last thirty years, life without parole (LWOP) sentences have flourished in the United States. Of course the very reason for a LWOP sentencing scheme is to incarcerate the convicted defendant until death. But under the Pardon Clause of the Constitution, as well as under state laws granting the Governor the pardoning power, inmates serving LWOP sentences might be eligible for early release by commutations. On the one hand, the possibility of clemency could be regarded as an impermissible loophole that could be used on a case-by-case basis to undermine the certainty of a LWOP sentencing system. On the …

What Is Federal Habeas Worth?, Samuel R. Wiseman

Scholarly Publications

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed for producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change— radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate. This Article lays out a needed empirical and …

Do Irish Courts And The European Court Of Human Rights Have Achieved The Correct Balance Between Protection Of The Rights Of Individual Prisoners And Pragmatic Concerns Regarding The Proper Functioning Of The Prison System., Adrian Berski

Reports

Nowadays it is very hard to find the relevant balance between decisions of the Irish Courts and European Court of Human Rights (ECtHR), regarding the rights of individual prisoners and the proper functioning of the prison system. On one side, the main function of the courts is resolution dispute, apply the relative law and most importantly: protecting the law and human rights. On the other hand, court decisions have to be based on the relevant prison and justice systems that applies to each particular country.

It is worth taking into consideration that decisions made by the European Court of Human …