Criminal Law Commons^™

The Legal Landscape After Roe's Reversal, Rachel Rebouché

University of Cincinnati Law Review

No abstract provided.

A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby

Maine Law Review

The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …

Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen

Maine Law Review

Perhaps in no other field of judicial endeavor is diversity and variety more apparent than when a sentencing judge considers the circumstances presented by a defendant convicted of a criminal offense. In each case, the sentencing judge confronts an individual who has no exact counterpart in any defendant previously appearing before the court for sentencing. The sentence imposed is primarily a matter of judicial discretion and is based upon consideration of the nature of the offense, the circumstances surrounding the commission of the offense, and the circumstances of the defendant. The sentencing judge formulates a specific sentence within broad statutory …

Maine's Unintentional Murder Statute: Depraved Indifference On Trial, Louis B. Butterfield

Maine Law Review

Perhaps nowhere in the law is the demand for reason and justice more compelling than in the penal law, and nowhere in the penal law is the need for fairness greater than in the law defining murder. The notion of fairness in Anglo-American criminal law is embodied in the concept of mens rea. For over three hundred years, the basic tenet of penal law has been that "actus non facit reum, nisi mens sit rea." A mens rea element serves to define a crime in positive terms and also provides the basis for defenses that negate the subjective culpability element. …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

The Problem Of Third-Party Consent In Fourth Amendment Searches: Toward A "Conservative" Reading Of The Matlock Decision, Robert Deschene

Maine Law Review

In United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant's home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses "common authority" over or a "sufficient relationship" to the area to be searched. At that point, the defendant's own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against …

Stephen Bright's Demand For Equal Justice: Book Talk With Professors Robert Tsai And Betsy Ginsberg, American Constitution Society (Acs)

2024–2025 Flyers

No abstract provided.

Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf

Washington and Lee Law Review Online

In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Washington Law Review

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one’s civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials …

Shocking Sentences, John B. Meixner Jr.

Indiana Law Journal

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds. Most arguments focus on how sentences arising from these penalties are disproportionate—that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: They lead to sentences that are totally unexpected—indeed, shocking—to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences. …

Command Responsibility And The War In Ukraine: Can Customary International Law Hold Russian Commanders Accountable For War Crimes?, Nicholas J. Nizinski

Dickinson Law Review (2017-Present)

Currently, neither Ukraine’s Constitution nor its criminal code establish the principle of command responsibility as a mode of criminal liability within the country. Key international statutes like Article 28 of the International Criminal Court and international case law, like the recently decided Case of Milanković v. Croatia, have firmly established the doctrine of command responsibility as a fundamental principle of customary international law applicable in the context of an armed conflict. Furthermore, the Milanković court affirmed a conviction based on command responsibility even in the absence of a clear domestic governing statute at the time the crime was committed, …

Chilling Victims’ Rights: The Supreme Court Creates A “Pride Of Place” For True Threats, Ana Maria Matovic

Dickinson Law Review (2017-Present)

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true …

Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway

Washington and Lee Law Review

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and …

Intoxicated Scootering: Rethinking Electric Scooter Liability In Washington, David Goodwin

Washington Law Review

The widespread acceptance of electric scooters has transformed the landscape of urban transportation. Yet, the emerging phenomenon of intoxicated scootering poses unanswered questions of liability and accountability. New research indicates that a third of traumatic electric scooter injuries are associated with intoxicated scootering. This statistic is particularly alarming given that there are over fifty million scooter trips per year in the United States.

In Washington State, the State Legislature has not enacted a state-wide policy against intoxicated scootering. Instead, the Legislature delegates the authority to regulate the operation of electric scooters to local governments. Due to the ambiguity of whether …

White Monsters: Understanding Whiteness As Social And Legal Monstrosity, Steven Sacco

Cardozo Journal of Equal Rights & Social Justice

The article argues that whiteness operates as a socially and legally constructed monstrosity, perpetuating systemic inequality and destructive power through both intentional and nonintentional mechanisms. By employing monster theory, the analysis reveals how whiteness adapts and evolves to maintain its dominance, often through legal frameworks that obscure its harmful effects. The Supreme Court's decision in Plyler v. Doe, while advancing justice in some aspects, also exemplifies how the law can perpetuate inequality by overlooking historical and social contexts.

Greater Of Two Evils: Trial Penalty Or Plea Penalty?, Breanne Potter

Cardozo Journal of Equal Rights & Social Justice

The article critiques the prevalence of plea bargaining in the U.S. criminal justice system, arguing that while it is often seen as a necessary evil for efficiency, it undermines constitutional rights and perpetuates injustice. The author introduces the concept of the "plea penalty," which refers to the significant and often overlooked consequences of accepting a guilty plea, such as the loss of rights and long-term collateral consequences. The article challenges the notion that the trial penalty—harsher sentences for those who go to trial—is the only concern, emphasizing that the plea penalty can be equally detrimental. It advocates for systemic reforms …

Not Just Mercy: Governors Should Use The Executive Clemency Power As A Corrective Tool For Mass Incarceration, Laura Tierney

Cardozo Journal of Equal Rights & Social Justice

The note argues that state governors should revive the use of executive clemency as a corrective tool to address mass incarceration and its disproportionate impact on communities of color. Executive clemency, which includes pardons, commutations, and sentence reductions, offers a means to provide immediate relief and promote social justice. The author emphasizes the historical roots of clemency as a check on the criminal justice system and advocates for its use to reduce prison populations and counteract the legacy of punitive policies.

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …