Criminal Law Commons^™

Amy And Vicky's Cause: Perils Of The Federal Restitution Framework For Child Pornography Victims, Robert W. Jacques

Georgia Law Review

Child pornography is unique among violent crimes in at
least one aspect: victims are harmed not only from their

initial abuse but also from knowing that people on the
Internet continue to view the images. In recent years, a
split has arisen among federal courts on whether victims
of child pornography are entitled to restitution from non-
production offenders, i.e., offenders that were not involved
in the initial abuse of victims. The controversy has
surrounded 18 U.S.C. § 2259-the mandatory restitution
statute for sex offenses. While some courts find victim
harm not sufficiently traceable to the crimes at issue to …

Disentangling The Relationship Between Child Maltreatment And Violent Delinquency: Using A Nationally Representative Sample, Ilhong Yun, Jeremy D. Ball, Hyeyoung Lim

Criminal Justice Faculty Publications and Presentations

This study uses the National Longitudinal Study of Adolescents (Add Health) data, a nationally representative sample of adolescents, to disentangle the relationship between child maltreatment and violent delinquency. Also examined are potential moderating effects of gender, socioeconomic status (SES), and religiosity on the association between child maltreatment and violent delinquency. Contrary to prior research findings, the current analyses reveal that physical abuse is not associated with future violent delinquency, whereas sexual abuse and neglect predict violent delinquency significantly. The current study also did not reveal any moderating effects of gender, SES, and religiosity on the association between maltreatment and violent …

Adhd And Criminality: A Primer On The Genetic, Neurobiological, Evolutionary, And Treatment Literature For Criminologists, Catrina M. Schilling, Anthony Walsh, Ilhong Yun

Criminal Justice Faculty Publications and Presentations

This paper is a primer on ADHD and its major comorbidities for criminologists unfamiliar with the genetic, neurobiological, and evolutionary literature on the subject. With Unnerver, Cullen & Pratt (2003) we are surprised that criminologists do not pay sufficient attention to a disorder that is found at rates in prisons around the world greatly exceeding in prevalence in the general population. Unnerver, Cullen & Pratt (2003) believe that it is because ADHD research has been carried out primarily by biomedical researchers and that criminologists tend to shy away from anything smacking of biology. We believe that the special expertise of …

Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore

Articles

Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …

Losing The War Against Dirty Money: Rethinking Global Standards On Preventing Money Laundering And Terrorism Financing, Richard K. Gordon

Faculty Publications

Following a brief overview in Part I.A of the overall system to prevent money laundering, Part I.B describes the role of the private sector, which is to identify customers, create a profile of their legitimate activities, keep detailed records of clients and their transactions, monitor their transactions to see if they conform to their profile, examine further any unusual transactions, and report to the government any suspicious transactions. Part I.C continues the description of the preventive measures system by describing the government's role, which is to assist the private sector in identifying suspicious transactions, ensure compliance with the preventive measures …

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …

Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor's charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA's Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …

It's Good To Be Autonomous: Prospective Consent, Retrospective Consent, And The Foundation Of Consent In The Criminal Law, Jonathan Witmer-Rich

Law Faculty Articles and Essays

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a …

Sex-Cells: Evaluating Punishments For Teen "Sexting" In Oklahoma And Beyond, John M. Krattiger

Oklahoma Law Review

No abstract provided.

Real Rape, Too, Bennett Capers

Faculty Scholarship

No abstract provided.

Statutory Interpretation, Morality, And The Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Scholarly Works

No abstract provided.

The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

Let The Sunshine In: The Aba And Prison Oversight, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

2010 may be remembered as the year in which prison oversight finally found a place on the national correction agenda, thanks in significant part to the attention that the American Bar Association has focused on this topic. In this article, we briefly describe the state of American prisons, trace the recent movement toward prison oversight, describe the rationale for oversight and the benefits it provides, and describe the contribution made to this effort by the ABA through the passage of its landmark resolution in 2008, through its Standards on the Treatment of Prisoners calling for prison oversight, and through the …

When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Indiana Law Journal

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo- American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Michigan Journal of International Law

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

The Rise And Fall Of The Miranda Warnings In Popular Culture, Ronald Steiner, Rebecca Bauer, Rohit Talwar

Cleveland State Law Review

While Dickerson's rationale is certainly correct in presuming that those over thirty have already learned about the Miranda warning from decades of television, younger generations only have today's Miranda-less programming on which to form their assumptions about law enforcement. Miranda can still be found on television, but its presence has severely diminished over the years. If this trend continues, how will America's current youth internalize the Miranda warning in the way older generations have? Near-universal awareness of Miranda is an artifact of a shared popular culture in which the repetition of the warnings was pervasive and inescapable. But how can …

Life, Death, And Iq: It's Much More Than Just A Score: Understanding And Utilizing Forensic Psychological And Neuropsychological Evaluations In Atkins Intellectual Disability/Mental Retardation Cases, John Matthew Fabian, William W. Thompson, Jeffrey B. Lazarus

Cleveland State Law Review

This article highlights best practices for assessing MR and ID in capital cases with an emphasis on Atkins trial preparation and potential problems the authors have noted through experience. These best practices in Atkins hearings concern issues for the lawyers, forensic psychologists, and neuropsychologists, which include:

1. Practice effects and IQ testing

2. Consistency of IQ scores over time

3. Flynn Effect

4. Malingering versus cognitive suboptimal effort

5. Lack of records indicating pre-age 18 diagnosis of MR/ID

6. Retrospective assessment of adaptive behaviors

7. Death row trends of increasing IQ over the years while incarcerated

8. Maladaptive behaviors versus …

Are 'Voices For Justice' Heard: A Star-Studded Rally On Behalf Of The West Memphis Three Prompts The Delicate Question, Mara Leveritt

University of Arkansas at Little Rock Law Review

No abstract provided.