Publisher: Northwestern University   (Total: 6 journals)   [Sort alphabetically]

Showing 1 - 6 of 6 Journals sorted by number of followers
J. of Criminal Law and Criminology     Full-text available via subscription   (Followers: 41, SJR: 0.336, CiteScore: 1)
Northwestern University Law Review     Full-text available via subscription   (Followers: 8, SJR: 1.381, CiteScore: 1)
Northwestern J. of Technology and Intellectual Property     Open Access   (Followers: 7)
Northwestern J. of Law & Social Policy     Open Access   (Followers: 6)
Northwestern J. of Intl. Human Rights     Open Access   (Followers: 5)
Northwestern J. of Intl. Law & Business     Open Access   (Followers: 4, SJR: 0.107, CiteScore: 0)
Similar Journals
Journal Cover
Journal of Criminal Law and Criminology
Journal Prestige (SJR): 0.336
Citation Impact (citeScore): 1
Number of Followers: 41  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 0091-4169
Published by Northwestern University Homepage  [6 journals]
  • Getting Out of Traffic: Applying White Collar Investigative Tactics to
           Increase Detection of Sex Trafficking Cases

    • Free pre-print version: Loading...

      Authors: Evan Binder
      Abstract: When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments of Jeffrey Epstein and the lifestyle brand NXIVM demonstrate that trafficking schemes are frequently much more complex than that tripartite structure and involve many other individuals who either participated or were involved in the illicit conduct. As such, the way federal authorities investigate sex trafficking can, and should be, reimagined. Combining this knowledge with further research into the psychological effects of saddling victims with the burden of carrying an investigation through to conviction, sex trafficking investigators can look to prosecutorial tactics used by the Antitrust Division of the Department of Justice. Since 1993, the Antitrust Division has operated their Amnesty Program, which grants immunity to those who either engage in or have knowledge of an illegal price-fixing scheme, and voluntarily bring this information to the government. The Division has seen great success with their leniency program, as over 90% of cases in the Division now begin with an amnesty cooperator. This Comment proposes that a similar leniency program could be utilized for investigating sex trafficking. A leniency program recognizes the three realities listed above: it fits within a reactive process for identifying cases, it relieves burdens on victims to begin investigations, and it recognizes that there are many other individuals who could provide information about illegal trafficking.
      PubDate: Sat, 14 May 2022 11:31:22 PDT
       
  • Rethinking Prison for Non-Violent Gun Possession

    • Free pre-print version: Loading...

      Authors: Robert Weiss
      Abstract: Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop where police discover a firearm under the seat of the car. Research indicates that mandating prison sentences for gun possession is not an effective tool for reducing gun violence. Yet, as this Comment describes, the painful status quo has proven difficult to change, even for “progressive prosecutors” elected to reform criminal justice. This Comment draws on first-hand interviews to detail how progressive prosecutors handle gun possession cases in practice. While these prosecutors advance some important changes, reforms remain limited by practical and political realities. To aid in breaking through these barriers, this Comment proposes a new cost-benefit framework called “Burden-Adjusted Violence Averted” (BAVA). BAVA yields the simple insight that we should invest in policies that do the most to reduce gun violence with the least pain and inequity. Imprisoning people for simple gun possession is deeply burdensome. And, in comparison to community-based anti-violence interventions, it is less likely to make our cities safe.
      PubDate: Sat, 14 May 2022 11:31:22 PDT
       
  • Is Juvenile Probation Obsolete' Reexamining and Reimagining Youth
           Probation Law, Policy, and Practice

    • Free pre-print version: Loading...

      Authors: Patricia Soung
      Abstract: The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried.1 But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important system aiming to both surveil and care for individuals. It draws together two frameworks: 1) law and policy which describe the juvenile probation system as intended, and 2) juvenile probation practices and attitudes which reveal the day-to-day translation of the system’s formal intentions. Ultimately, where a system’s approach to rehabilitation and accountability become synonymous with or too reflexively able to adopt surveillance, containment, and punishment orientations, its ability to deliver meaningful help and support through that same system is improbable. Thus, this Article discusses the need in the United States to reform, dismantle, or replace probation with youth development-focused systems and uses Los Angeles as an example of a government already doing this important work.1 Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1018 (2013).
      PubDate: Sat, 14 May 2022 11:31:21 PDT
       
  • Judicial Responses to Age and Other Mitigating Evidence: An Exploratory
           Case Study of Juvenile Life Sentences in Pre-Miller Cases

    • Free pre-print version: Loading...

      Authors: José B. Ashford et al.
      Abstract: This study describes how judges in Maricopa County, Arizona responded to age and other mitigation evidence in imposing “life” versus “natural life” sentences for juvenile offenders convicted of homicide in pre-Miller cases. Maricopa County was selected for this case study because of its history of adhering to “restrictive interpretations” of various kinds of mitigation evidence and because of the characteristics of this county’s local court community. The study employed a mixed-methods design consisting of a content analysis of relevant case documents and a quantitative analysis of the findings from the qualitative analyses of legal case documents. It examined 82% of the juveniles given natural life sentences and 72% of the juveniles given a sentence of life (25-to-life) in Maricopa County. The findings of this study indicated that judges referenced age as a statutory mitigating factor in 17% of both “life” and “natural life” cases, and age as a reason for the sentences imposed in 46% of both “life” and “natural life” cases. However, the age-relevant and other mitigating reasons referenced by judges lacked statistically significant associations with the sentences that the judges imposed. The only judicial reason with a statistically significant association with the imposed sentences was “emotional impact of the crime on the victim’s family.” The implications of this and other findings for “full responsibility” and “mitigation” approaches for blaming juvenile lifers were discussed, as well as the need for future research on post-Miller sentencing and resentencing processes.
      PubDate: Sat, 14 May 2022 11:31:21 PDT
       
  • Paying For a Clean Record

    • Free pre-print version: Loading...

      Authors: Amy F. Kimpel
      Abstract: Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.
      PubDate: Sat, 14 May 2022 11:31:19 PDT
       
  • Fetal Protection Laws and the "Personhood" Problem: Toward a Relational
           Theory of Fetal Life and Reproductive Responsibility

    • Free pre-print version: Loading...

      Authors: Amanda Gvozden
      Abstract: Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to protect women from prosecution for the injury or death of their own fetus. However, in recent years, despite these explicit constraints, cases have emerged in California that do just this: prosecute women for harm to their own fetus. So why, if states are clearly exempting pregnant women from prosecution for their own injured fetuses, are such prosecutions still being undertaken' This Comment suggests that the problem lies in the fetal personhood theory now underlying these FPLs. FPLs not only provide protective rights to fetuses, but in doing so, define the fetus as a legal person. Under this framework, it becomes impossible not to prosecute the mother for harm because she and the fetus are separate legal persons with separate legal rights and protections. However, there is an alternative. Drawing from feminist care theory and distributive justice, this Comment proposes that rather than consider the fetus and the mother as separate legal entities, the fetus and the mother should be seen as one fetal-maternal entity with rights flowing through the mother. This Comment refers to this theory as the Fetal Maternal Identity Theory (FMIT). Rather than seeing the mother and fetus as independent entities, FMIT correctly recognizes the unique relationality between the fetus and its mother and reconceives of rights as incumbent upon this relationship. Because the fetus is necessarily dependent upon the mother, all of its rights, like its identity and very existence, are afforded to it through and in relation to its mother. This theory solves several problems. First, it helps to define the problem facing states that seek not to prosecute women for harm to their fetuses but find it impossible to do so. Second, it provides the foundation for a new theory of relationality that better appreciates the complex condition of pregnancy and protects women from harm and unjust prosecution. Ultimately, beyond its function, FMIT better apprehends the conditions of pregnancy and provides a well-grounded framework for redistributing responsibility.
      PubDate: Fri, 25 Mar 2022 20:55:18 PDT
       
  • Theorizing Failed Prosecutions

    • Free pre-print version: Loading...

      Authors: Jon B. Gould et al.
      Abstract: Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this Article, we take up an analysis of failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from a moderately-sized district attorney’s office. With almost no prior research on failed prosecutions, these empirical data help to put meat on the theoretical bones of the concept. In the end, we argue that failed prosecutions and erroneous convictions may be seen as different sides of the same coin of miscarriages-of-justice. Not only do both reflect significant errors by the criminal justice system, but the sources of each also appear to be surprisingly similar.
      PubDate: Fri, 25 Mar 2022 20:55:17 PDT
       
  • Protecting the Substantive Due Process Rights of Immigrant Detainees:
           Using COVID-19 to Create a New Analogy

    • Free pre-print version: Loading...

      Authors: Liamarie Quinde
      Abstract: While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of civil detention and is legally distinct from criminal incarceration. This distinction is important because the federal courts traditionally approach civil detention with a scrutinizing eye. Civil detainees receive certain Fifth Amendment protections not available to the criminally convicted, namely that their detention cannot amount to punishment. The consequences of lacking a clear definition of immigrant detainees’ due process rights became far more apparent during the COVID‑19 pandemic. As COVID‑19 infections spread and detention and confinement conditions became more perilous, immigrant detainees relied on habeas corpus petitions to challenge the conditions of their confinement and seek release. However, several federal courts concluded that habeas was an inappropriate vehicle through which to challenge conditions of immigration detention, reflecting a long-standing circuit split within the criminal incarceration context. This Comment argues that courts that denied habeas petitions for release of immigrant detainees during the COVID‑19 pandemic incorrectly analogized immigration detention to post-conviction criminal incarceration. This Comment suggests that the COVID‑19 pandemic highlights the need for the federal courts to take a more principled approach to analyzing the substantive due process rights of immigrant detainees by drawing analogies to a different stage of the criminal adjudication process: pretrial detention.
      PubDate: Fri, 25 Mar 2022 20:55:17 PDT
       
  • Risk-Based Sentencing and the Principles of Punishment

    • Free pre-print version: Loading...

      Authors: Christopher Lewis
      Abstract: Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to be the most likely to reoffend.
      PubDate: Fri, 25 Mar 2022 20:55:16 PDT
       
  • Reconceiving Coercion-Based Criminal Defenses

    • Free pre-print version: Loading...

      Authors: Stephen R. Galoob et al.
      Abstract: Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts' Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon of interpersonal abuse in which one person pervasively regulates the choices of another. Coercive control is sometimes carried out through violence or threats of violence but often through ostensibly non-violent forms of degradation (such as humiliation and isolation). Coercive control is often evinced in abusive intimate relationships, including in human trafficking. People subject to coercive control are undeniably coerced. Yet the wrongful pressure model cannot adequately explain why. Those subject to coercive control are ineligible for coercion-based criminal defenses, such as duress and affirmative defenses for victims of human trafficking, in part because of the inadequacy of the wrongful pressure model. This Article articulates and defends an alternative understanding of coercion that, after philosopher Scott Anderson’s theory of the same name, we call the “enforcement approach” to coercion. According to the enforcement approach, coercion involves the coercer’s using power to determine what the target will or will not do. The enforcement approach is superior to the wrongful pressure approach as an explanation for what makes coercion wrong and why being subject to coercion should provide a defense to criminal liability. Furthermore, the enforcement approach better explains how coercion operates pervasively, such as in coercive control contexts. The enforcement approach also invites a broader rethinking of coercion-based criminal defenses. The enforcement approach grounds a model of criminal defense for those subject to coercive control that would supplement existing defenses.
      PubDate: Fri, 25 Mar 2022 20:55:16 PDT
       
  • How Culture Impacts Courtrooms: An Empirical Study of Alienation and
           Detachment in the Cook County Court System

    • Free pre-print version: Loading...

      Authors: Maria Hawilo et al.
      Abstract: Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 N California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich ethnographic observations, this Article draws out a series of themes that illuminate two types of failures that characterize courtroom culture in Cook County: micro-level failures and structural-level failures. While micro-level failures may fall into the category of “mistakes,” when aggregated they impede the effective functioning of the criminal legal system. Structural-level failures, by contrast, threaten the fair and efficient operation of courts even in the absence of individual errors. This Article uses examples of real court interactions gathered through observational research to illustrate both categories of failures in the Cook County criminal courts. This Article then situates these observations in the context of legal cynicism theory to explain the impact of courtroom culture on those most directly impacted by the system. This Article concludes with recommendations for courtroom culture reform, looking for positive examples in our data and considering new possibilities for courts in the era of COVID-19.
      PubDate: Fri, 25 Mar 2022 20:55:15 PDT
       
  • Recalibrating Qualified Immunity: How Tanzin v. Tanvir, Taylor v. Riojas,
           and McCoy v. Alamu Signal the Supreme Court's Discomfort with the
           Doctrine of Qualified Immunity

    • Free pre-print version: Loading...

      Authors: Patrick Jaicomo et al.
      Abstract: In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The Court’s decision in Tanvir—alongside those in Taylor v. Riojas and McCoy v. Alamu—offers the strongest signal in decades that the Court is ready to recalibrate its qualified immunity jurisprudence. While it is not time to celebrate the demise of qualified immunity just yet, this Article will discuss how the Court’s disposition of those cases reveals the Court is reconsidering both the foundations and applications of qualified immunity.
      PubDate: Sun, 23 Jan 2022 17:32:52 PST
       
  • Civil Rights Litigation in the Lower Courts: The Justice Barrett Edition

    • Free pre-print version: Loading...

      Authors: Aaron L. Nielson et al.
      Abstract: Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation. Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such “cert-proofing” tools are problematic. In this Article, they apply that model to civil rights litigation involving qualified immunity, with particular focus on Justice Barrett’s confirmation. On the assumption that Barrett’s views will be more like those of the late Justice Antonin Scalia (for whom she clerked) than those of the late Justice Ruth Bader Ginsburg (whom she replaced), the model predicts lower court judges who do not share Barrett’s views will be tempted, at the margins, to try to evade Supreme Court review. This temptation may be particularly strong for cases that involve qualified immunity, which present unique cert-proofing opportunities. At the same time, the model predicts judges who do share Barrett’s views will be less inclined to use such tools. Thus, although there likely will be no meaningful change in how most cases are decided, the upshot of the model is that in marginal cases it is possible that lower courts will change how they address civil rights litigation.
      PubDate: Sun, 23 Jan 2022 17:32:52 PST
       
  • Prison Medical Deaths and Qualified Immunity

    • Free pre-print version: Loading...

      Authors: Andrea Craig Armstrong
      Abstract: The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided. According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States. Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care. The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail administrators. In addition, the defense is not appropriate because medical care decisions by carceral actors are fundamentally different than traditional qualified immunity cases. Traditional qualified immunity cases usually involve discretionary decisions that are one-off, emergency, binary choices made by a single actor or unit of actors. In contrast, medical decisions in carceral settings are often serial, ongoing, and usually involve multiple decision makers, sometimes acting beyond their area of expertise. These significant differences between medical decisions in carceral settings and traditional qualified immunity decisions illustrate the practical difficulties for incarcerated plaintiffs and their families in holding prisons accountable for violating the U.S. Constitution. Recent developments refining the doctrine may lessen the negative impact of the defense on these civil rights claims, but they also do not address the core disconnect between the rationales justifying qualified immunity and its application in cases of severe injury or death from inadequate carceral healthcare.
      PubDate: Sun, 23 Jan 2022 17:32:51 PST
       
  • Policing Suspicion: Qualified Immunity and "Clearly Established"
           Standards of Proof

    • Free pre-print version: Loading...

      Authors: Seth W. Stoughton et al.
      Abstract: This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the 21st century must take seriously the idea that the Constitution is a floor, not a ceiling, and it calls for the development of more rigorous standards for police actions.
      PubDate: Sun, 23 Jan 2022 17:32:50 PST
       
  • Qualified Immunity and Unqualified Assumptions

    • Free pre-print version: Loading...

      Authors: Teressa E. Ravenell et al.
      PubDate: Sun, 23 Jan 2022 17:32:49 PST
       
  • Breonna Taylor: Transforming a Hashtag into Defunding the Police

    • Free pre-print version: Loading...

      Authors: Jordan Martin
      Abstract: How can modern policing be reformed to address police violence against Black women when it can occur at no fault of their own and end with a shower of bullets in the middle of the night while within the sanctity of their own home' What is accomplished when her name is said but justice is never achieved' What good does it do when her story is subsequently overshadowed or overlooked by the reform movements that intend to correct racism and sexism respectively' This Comment analyzes both Black women’s vulnerability to police violence and their invisibility in reform movements. First, police violence against Black women is a common result of systemic racialized, gendered biases, misinformed by monolithic stereotypes and justified through the absence of institutional discipline and general social disapproval. The predominant underlying rationale often being that Black women are worthless, false victims who either perpetrated the violence or are somehow deserving of it. Second, while Black women are subject to both racism and sexism, their experiences are not given the same or similar platform in comparison to Black men in the antiracist movement or white women in the antisexist movement. Rather, Black women’s needs are perceived as subordinate and inconsequential. Breonna Taylor’s killing is a beacon that illuminates the dangers posed to Black women, both in their own homes, where they should be safe, and in their own movements, where they should be heard. Her story is a signal that places a needed emphasis on overcoming the destruction in silence and empowerment in reclaiming the narrative. In determining an alternative solution to this historical, societal quandary, this Comment cautions that mere localized reform and implemented officer trainings are insufficient to overhaul an institutionalized system of racialized, gendered violence. This Comment builds upon intersectionality theory in its aim to conceptualize what defunding the police should look like in order to adequately address the unique needs of Black women. That is, that the “defund” movement must prioritize and center Black women. To be successful in this endeavor, Black women must receive adequate funding for community-based service organizations, recognized leadership positions of power beyond mere representation, and have the advantage of culturally competent mental and emotional support.
      PubDate: Thu, 25 Nov 2021 11:51:23 PST
       
  • Don't (Tower) Dump on Freedom of Association: Protest Surveillance
           Under the First and Fourth Amendments

    • Free pre-print version: Loading...

      Authors: Ana Pajar Blinder
      Abstract: Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such as tower dumps—can be solved by conducting independent First Amendment analyses. A multi-factor balancing test can assist the courts as they consider the scope and pervasiveness of technology such as tower dumps against the potential chilling effects on First Amendment-protected activity, providing a framework to assess the constitutionality of surveillance technology used during mass protests.
      PubDate: Thu, 25 Nov 2021 11:51:22 PST
       
  • Constitutional Pandemic Surveillance

    • Free pre-print version: Loading...

      Authors: Matthew B. Kugler et al.
      Abstract: How do people view governmental pandemic surveillance' And how can their views inform courts considering the constitutionality of digital monitoring programs aimed at containing the spread of a highly contagious diseases' We measure the perceived intrusiveness of pandemic surveillance through two nationally representative surveys of Americans. Our results show that even at the height of a pandemic people find surveillance for public health to be more intrusive than surveillance for traditional law enforcement purposes. To account for these strong privacy concerns, we propose safeguards that we believe would make cell phone location tracking and other similar digital monitoring regimes constitutionally reasonable.
      PubDate: Thu, 25 Nov 2021 11:51:21 PST
       
  • Toward a More Perfect Trial: Amending Federal Rules of Evidence 106 and
           803 to Complete the Rule of Completeness

    • Free pre-print version: Loading...

      Authors: Louisa M. A. Heiny et al.
      Abstract: The common law Rule of Completeness was designed to prevent parties from introducing incomplete—and thereby misleading—statements at trial. It ensured fundamental fairness by ensuring that a fact finder heard an entire statement or series of statements if the whole would “complete” the partial evidence presented. It served this important role in Anglo-American jurisprudence for centuries before the drafters of Federal Rule of Evidence 106 attempted to capture its essence in 1975. Unfortunately, what was once a simple and principled rule has been muddled by Federal Rule of Evidence 106 (FRE 106). The common law rule language was lost when FRE 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether FRE 106 applies to oral as well as written statements, and whether FRE 106 allows a court to admit otherwise inadmissible evidence. The federal and state courts are split on these issues, and the United States Supreme Court has failed to provide guidance. Academics and commentators in the past have suggested these issues should be solved by amending FRE 106. However, these suggested amendments have generally been limited to FRE 106 itself, and each has tucked the equivalent of a new hearsay exception into an amended 106—a departure from the otherwise well-ordered Federal Rules of Evidence. This Article critically examines current Rule of Completeness jurisprudence. It compares and contrasts the common law with FRE 106, and then dives deeply into state and federal courts disparate interpretations of FRE 106. Finally, it recommends that the Federal Rules of Evidence Advisory Committee resolve doctrinal conflicts inherent in Rule 106 and draft two new Rules of Evidence. First, it recommends an expanded and clarified Federal Rule of Evidence 106 that applies to both written and oral statements. Second, it recommends a new addition to FRE 803 that would create a hearsay exception for statements otherwise qualified for admission under FRE 106 but currently barred under the Rule Against Hearsay.
      PubDate: Thu, 25 Nov 2021 11:51:20 PST
       
 
JournalTOCs
School of Mathematical and Computer Sciences
Heriot-Watt University
Edinburgh, EH14 4AS, UK
Email: journaltocs@hw.ac.uk
Tel: +00 44 (0)131 4513762
 


Your IP address: 3.237.29.69
 
Home (Search)
API
About JournalTOCs
News (blog, publications)
JournalTOCs on Twitter   JournalTOCs on Facebook

JournalTOCs © 2009-