Criminal Law Commons^™

The Protection Of Human Rights In The Suppression Of Transnational Crime, Robert Currie

Articles, Book Chapters, & Popular Press

This chapter examines the troubled relationship between the various legal regimes under which states cooperate to suppress crime and the protection of human rights, specifically the procedural human rights of individuals targeted for investigation in transnational cases. It provides an analysis of what rights protections exist in the context of the suppression treaties themselves, and also whether and to what extent international human rights law imposes obligations on states when they engage in inter-state cooperation in criminal matters (eg extradition, mutual legal assistance). It concludes that despite the topic being an active one for some decades, relatively few hard human …

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

This year the Supreme Court denied certiorari to Cecelia Cathleen Rodriguez, a 61- year old woman from Oklahoma sentenced to life in prison. Her crime was theft of two purses from a department store. Ms. Rodriguez hoped that the Supreme Court would see fit to upend her conviction or declare her sentence excessive. Ms. Rodriguez's family reported to the state court that she has struggled with heroin addiction since the 1960s, leading to numerous arrests on petty charges. The majority of her extensive record was composed of petty thefts, drug possession, and other nonviolent offenses. The stolen bags in this, …

"If You Is White, You's Alright....": Stories About Colorism In America, Kimberly Jade Norwood

Scholarship@WashULaw

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.

Juvenile Transfer To Adult Criminal Court: Why Transfer Is Not The Best Method In Addressing Juvenile Delinquency, Sarah E.S. Kukino

CMC Senior Theses

Reducing juvenile delinquency is an important issue because today’s juvenile population will become the next generation of contributing members to society. Therefore, the juvenile justice system is faced with the challenge of creating effective methods of decreasing delinquency and providing necessary treatment to juvenile offenders. Legislators implemented juvenile transfer to adult criminal court with the intent of increasing punishments in order to deter future juvenile crime and to hold juvenile offenders accountable for their criminal behavior. This paper shows why juvenile transfer is not an effective method in addressing the issues of juvenile delinquency by looking at several studies that …

A Philosophical Analysis Of California Determinate Sentencing, Three Strikes, And Realignment, Madeline Stein

CMC Senior Theses

This thesis explores the relationship between philosophy and policy in the context of three California policies, Determinate Sentencing, Three Strikes, and Realignment. The philosophy portion includes theories of retribution, deterrence, and rehabilitation, focusing on the tensions and conflicts within them.

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

Personal Stare Decisis, Hiv Non-Disclosure, And The Decision In Mabior, Elaine Craig

Articles, Book Chapters, & Popular Press

This article discusses the concept of personal stare decisis and the issue of horizontal precedent through examination of Canada's jurisprudence on the (over) criminalization of HIV non-disclosure. The Court's reasoning in R v Cuerrier and R v Mabior, as well as the trial decisions decided since Mabior are examined. The point is not to suggest that Justice McLachlin’s approach in Cuerrier offered the perfect solution to this issue. Indeed, as Isabel Grant argues, a better approach would remove non-disclosure of HIV status from the sexual assault criminal law regime and in its stead reintroduce the use of offences such …

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill C. Engle

Faculty Scholarship

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports

Faculty Scholarship

The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. …

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Faculty Scholarship

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Effective Aggressiveness And Inconsistencies In The Bijuridical Treatment Of Aggressive Behaviour: Mixed Martial Arts, Bullying, And Sociolegal Quandaries, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

This paper seeks to address effective aggressiveness and the treatment of aggressive behaviour in the context of MMA in comparison to the balance of the formal Canadian legal landscape. I choose anti-bullying legislation, and its treatment of aggressive behaviour, as a counterexample to the treatment of aggressive behaviour within the MMA regulatory framework. By intertextually linking and superimposing these two categories of legislation, a critical lens drawing on institutional ethnography is applied. This is done to question and deconstruct the differential treatment of aggressive behaviour and the rationale behind the legislative mixed message sent. This lens also allows me to …

Personal Stare Decisis, Hiv Non-Disclosure, And The Decision In Mabior, Elaine Craig

Articles, Book Chapters, & Popular Press

This article discusses the concept of personal stare decisis and the issue of horizontal precedent through examination of Canada's jurisprudence on the (over) criminalization of HIV non-disclosure. The Court's reasoning in R v Cuerrier and R v Mabior, as well as the trial decisions decided since Mabior are examined. The point is not to suggest that Justice McLachlin’s approach in Cuerrier offered the perfect solution to this issue. Indeed, as Isabel Grant argues, a better approach would remove non-disclosure of HIV status from the sexual assault criminal law regime and in its stead reintroduce the use of offences such as …

Honoring And Celebrating Myrna Raeder, Brett Dignam

Faculty Scholarship

It is a great privilege to be honoring Myrna Raeder and to celebrate her impressive career, scholarship and personhood. How appropriate to bring together scholars and advocates who share and will carry on her passions. Thank you everyone at Southwestern Law School who worked so hard to imagine and realize this symposium, for gathering us together, and for giving us the opportunity to reflect on the many gifts and fierce challenges Myrna gave to each of us. There is no finer tribute we can give than to carry on her work – the development of ideas and the encouragement of …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Faculty Articles

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Ending Drunk Driving With A Flash Of Light, Andrew Sullivan

Richmond Journal of Law & Technology

Drunk driving exacts an enormous toll on our society. Every year, alcohol-driven crashes kill over ten thousand people, injure hundreds of thousands more, and cost the national economy tens of billions of dollars. States largely have been left to combat this problem through their own criminal regimes. Among the methods used to combat drunk driving is mandating a person convicted of driving under the influence/driving while intoxicated3 install an ignition interlock device (“IID”) in her vehicle as a condition of restoring her driving privileges.

Death Penalty Drugs And The International Moral Marketplace, James Gibson, Corinna Barrett Lain

Law Faculty Publications

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection.At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing (mostly in Europe) have refused to be merchants of death. But closer inspection reveals that European governments are the true change agents here. For decades, those governments have tried-and failed-to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was …

The Mcdonnell Case: A Clarification Of Corruption Law Or A Confusing Application Of Corruption Law, Henry L. Chambers Jr.

Law Faculty Publications

This article discusses two additional issues the McDonnell case raises. The first issue is how much evidence is necessary to sustain a conviction for attempting to obstruct an official proceeding. Mrs. McDonnell was convicted of attempting to obstruct the grand jury in this case for sending a misleading note to Williams, but her actions were deemed insufficient to support her obstruction conviction. The other issue relates to the McDonnells' sentencing. The sentences they received were much shorter than the sentences calculated using the United States Sentencing Guidelines. This article considers the official act issue, the obstruction issue, and the sentencing …

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

In 2014, many states revisited disproportionately high sentencing schemes for low-level property offenses. Voters in states across the country rallied in favor of reductions in penalties for low-level, nonviolent property offenses, such as theft, check fraud, and larceny. Bipartisan efforts to ease the financial burden of incarceration have lead to criminal justice reforms in states like California, Oregon, and Mississippi. Advocates for women in the criminal justice system have embarked on campaigns to frame reforms as not just a cost-cutting measure, but also as a moral imperative.

For many women, primarily women with little money, relatively low-value property offense convictions …