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CRIMINAL LAW (28 journals)

Showing 1 - 28 of 28 Journals sorted alphabetically
American Criminal Law Review     Free   (Followers: 9)
American Journal of Criminal Law     Full-text available via subscription   (Followers: 12)
Anuario Iberoamericano de Derecho Internacional Penal     Open Access   (Followers: 3)
Bergen Journal of Criminal Law & Criminal Justice     Open Access   (Followers: 2)
Berkeley Journal of Criminal Law     Open Access   (Followers: 6)
Cambridge journal of evidence-based policing     Hybrid Journal   (Followers: 59)
Derecho Penal y Criminología     Open Access   (Followers: 4)
European Criminal Law Review     Full-text available via subscription   (Followers: 15)
Howard Journal of Crime and Justice The     Hybrid Journal   (Followers: 16)
Indonesian Journal of Criminal Law     Open Access   (Followers: 3)
International Journal of Digital Crime and Forensics     Full-text available via subscription   (Followers: 11)
Journal of Criminal Law     Full-text available via subscription   (Followers: 415)
Journal of Criminal Law and Criminology     Full-text available via subscription   (Followers: 51)
Justitiële verkenningen     Full-text available via subscription   (Followers: 4)
Legal and Criminological Psychology     Full-text available via subscription   (Followers: 15)
Monatsschrift für Kriminologie und Strafrechtsreform / Journal of Criminology an Penal Reform     Hybrid Journal   (Followers: 2)
Money Laundering Bulletin     Full-text available via subscription   (Followers: 8)
New Journal of European Criminal Law     Full-text available via subscription   (Followers: 8)
PROCES     Full-text available via subscription   (Followers: 2)
Psychiatry, Psychology and Law     Hybrid Journal   (Followers: 458)
Revista Eletrônica de Direito Penal e Política Criminal     Open Access   (Followers: 1)
SASI     Open Access   (Followers: 6)
Sexual Abuse A Journal of Research and Treatment     Hybrid Journal   (Followers: 45)
Strafverteidiger     Hybrid Journal   (Followers: 2)
Te Wharenga : New Zealand Criminal Law Review     Open Access   (Followers: 1)
Tidsskrift for strafferett     Full-text available via subscription   (Followers: 2)
Tijdschrift voor Criminologie     Full-text available via subscription   (Followers: 2)
Western Criminology Review     Full-text available via subscription   (Followers: 6)
Similar Journals
Journal Cover
Journal of Criminal Law and Criminology
Journal Prestige (SJR): 0.336
Citation Impact (citeScore): 1
Number of Followers: 51  
  Full-text available via subscription Subscription journal
ISSN (Print) 0091-4169
Published by Northwestern University Homepage  [6 journals]
  • Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native
           American Autonomy, and Violence Against Women in Indian Country
    • Authors: Joseph Mantegani
      Abstract: Native American women face rates of sexual violence far beyond those experienced by any other race. But when those women live on reservations, their own tribes are restricted in their authority to protect their members. A maze of criminal jurisdiction overlies Indian country, one that depends on the location of the crime, the agreements a particular tribe has with local or federal authorities, the applicable federal jurisdictional statutes, and the offender’s race.Since Oliphant v. Suquamish Indian Tribe in 1978, tribes have not had criminal jurisdiction over non-Indians who commit crimes on their reservations. Rather, tribes must rely on state or federal law enforcement to investigate and prosecute any crime committed by non-Indians. Congress has chipped away at the prohibition, but the fact remains: in no other place in America is a perpetrator’s race the determining factor in whether they can be prosecuted by the community most impacted by their offense.This lack of jurisdiction and tribal sovereignty takes on a disturbing tone in the context of sexual violence against women. Congress’s attempts to remedy the endemic issue have been piecemeal, paternalistic, and wholly inadequate. Even though the issue is still on their mind—there are several pieces of pending legislation addressing sexual violence in Indian Country—the most important steps have not been taken.This Comment explores the jurisdictional backdrop, the most recent enacted legislation to address the issue, and currently pending legislation. It places that jurisdictional framework in the context of Native American communities, describing how tribes’ lack of autonomy exacerbates plights that trace back to early colonialism. Finally, it argues that absent adequate resource allocation, true tribal autonomy, and a return of tribal criminal jurisdiction over non-Indians by overruling Oliphant, tribes will remain treated as second-class in America.
      PubDate: Sun, 28 Feb 2021 22:43:55 PST
  • Peremptory Challenges: Preserving An Unequal Allocation and the Potential
           Promise of Progressive Prosecution
    • Authors: Savanna R. Leak
      Abstract: In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the federal system maintain an unequal allocation of peremptory challenges in any capacity. This inconsistency strikes a chord fundamental to the fairness of our justice system, especially in light of the Supreme Court’s failure to eliminate the discriminatory exercise of the peremptory challenge in Batson. This Comment argues that, at this time, the federal system and remaining states should not move toward equalizing the number of peremptory challenges afforded to the defense and prosecution because allocating a greater number of peremptory challenges to the defense best serves theoretical fairness in the justice system, including maintaining the community’s perception the justice system’s fairness. Additionally, allocating a greater number of peremptory challenges to the defense serves actual fairness by reducing opportunities for prosecutors to use peremptory challenges in a discriminatory manner. Finally, this Comment takes the novel approach of considering how the “progressive prosecution” movement may justify movement toward equalization in the future, by shifting the community’s perception of fairness and by increasing actual fairness in the exercise of peremptory challenges.
      PubDate: Sun, 28 Feb 2021 22:43:52 PST
  • The Specific Deterrent Effects of Criminal Sanctions for Intimate Partner
           Violence: A Meta-Analysis
    • Authors: Joel H. Garner et al.
      Abstract: A dozen systematic reviews published since 1978 have sought to clarify the complexities of deterrence theory. These reviews emphasize the general deterrent effects of police presence, arrest, and incarceration on rates of homicide and other serious crimes, such as assault, rape, and burglary. These reviews provide less attention to specific deterrence processes and to the deterrent impacts of intermediate sanctions, such as prosecution or conviction; none of these reviews incorporate any of the research on criminal sanctions for intimate partner violence. To address these limitations, this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal sanctions—prosecution, conviction, and incarceration—for one offense type—intimate partner violence. Based upon 57 studies that reported 237 tests of specific deterrence theory, the effects of sanctions varied: there is a marginal deterrent effect for prosecution, no effect for conviction, and a large escalation effect among incarcerated offenders. In addition, deterrent effects in the available research are stronger in tests that use more rigorous research designs, that measure repeat offending using victim interviews instead of official records, and that use new offenses against the same victim—not new arrests or new convictions against any victim—as the criteria for repeat offending.
      PubDate: Sun, 28 Feb 2021 22:43:50 PST
  • Criminalizing China
    • Authors: Margaret K. Lewis
      Abstract: The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that possess “China-ness,” based on PRC nationality, PRC national origin, Chinese ethnicity, or other expressions of connections with “China.” The Article further contends that, when assessed in light of the goals of deterrence, incapacitation, rehabilitation, and retribution, it is worrisome that the prosecution and punishment of people and entities rests in part on a connection with “China.” A better path is to discard the “China Initiative” framing, focus on cases’ individual characteristics, and enhance the Department of Justice’s interactions with nongovernmental experts.
      PubDate: Sun, 28 Feb 2021 22:43:47 PST
  • Unshackling Plea Bargaining from Racial Bias
    • Authors: Elayne E. Greenberg
      Abstract: “History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.” Dr. Maya Angelou When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial bias that exists against African American male defendants will taint the negotiation process and justice outcomes. The racial profiling by the police, the presumption of guilt rather than innocence for African American men, the prosecutor’s discretion when charging the defendant, and the justice negotiation’s speed all contribute to the harsher negotiated sentences that African American male defendants receive compared to white male defendants accused of similar crimes. These racially tainted outcomes threaten the integrity of our justice system, and the core of our democracy.This Article traces the origins of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: slavery, the criminal justice system, and plea bargaining. The Article then explains how plea bargaining’s structure, as it exists today, allows these historical racial biases to manifest and fester. Culling from the research of cognitive psychologists, dispute system design scholars, and anti-racism educators, this Article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.
      PubDate: Sun, 28 Feb 2021 22:43:45 PST
  • The Corporate Insanity Defense
    • Authors: Mihailis E. Diamantis
      Abstract: Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered' Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where sanctions would not deter. Punishing such corporations undermines the goals of criminal law, leaves victim interests unaddressed, and is unfair to corporate stakeholders.This Article argues that some corporate criminal defendants should be able to raise the insanity defense. Statutory text makes the insanity defense available to all qualifying defendants. When a corporate criminal defendant’s mind is sufficiently disordered, basic criminal law purposes also support the defense. Corporate crime in these cases may trace to dysfunctional systems or subversive third parties rather than to corporate malice. For example, individual corporate employees may thwart well-meaning corporate policies to pursue personal advantage at the expense of the corporation itself. Corporations then may seem more like victims of their own misconduct rather than perpetrators of it.Justice and prevention favor treatment of insane corporations rather than punishment. Recognizing the corporate insanity defense would better serve victims’ and stakeholders’ interests in condemning and preventing corporate misconduct. Treatment would create an opportunity for government experts to reform dysfunctional corporations in a way that predominant modes of corporate punishment cannot. Effective reform takes victims seriously by minimizing the chance that others will be harmed. It also spares corporate stakeholders unnecessary punishment for corporate misconduct that could be sanctioned in more constructive ways.
      PubDate: Sun, 28 Feb 2021 22:43:41 PST
  • Prosecutors and their State and Local Polities
    • Authors: Ronald F. Wright
      Abstract: Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts.Duties to statewide voters derive from the fact that state legislatures create the criminal codes that prosecutors enforce. State government also funds some of the work of local prosecutors, but that funding is not sufficient to allow full enforcement of the criminal law. The state-level polity, therefore, empowers the local prosecutor to allocate scarce resources and to decline charges—even for entire categories of cases—as a means of promoting public safety that matches local conditions. Local prosecutors can meet their obligations to the statewide polity by framing their policies as rebuttable presumptions against filing charges and by justifying those policies as a reallocation of limited resources.Duties to the local polity can add further legitimacy to a prosecutor’s declination policy. Local views about the relative importance of crime should matter, particularly in circumstances where local governments fund aspects of court operations, the effects of crime and law enforcement are concentrated locally, and state law grants autonomy to the local prosecutor.
      PubDate: Mon, 23 Nov 2020 11:35:14 PST
  • Rural Spaces, Communities of Color, and the Progressive Prosecutor
    • Authors: Maybell Romero
      Abstract: The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors.Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and minorities has increased. In rural jurisdictions, incarceration rates have increased, and prosecutors have seemingly become less reform minded.This Article casts suspicion on progressive prosecution. It questions whether such an appellation should exist given the current nature of the prosecutor’s job in the United States. It also serves as a warning; although such prosecutors have become more common in large cities, practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.
      PubDate: Mon, 23 Nov 2020 11:35:11 PST
  • Race, Reform, & Progressive Prosecution
    • Authors: Daniel Fryer
      Abstract: The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial justice on top of its decarceration efforts. To avoid exacerbating the problems they intend to correct, reformists must reexamine the principles underlying the movement and the aims they expect to achieve.
      PubDate: Mon, 23 Nov 2020 11:35:07 PST
  • When Prosecutors Politick: Progressive Law Enforcers Then and Now
    • Authors: Bruce A. Green et al.
      Abstract: A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of prosecutors received a good deal of popular attention and support. The Progressive Era reformers introduced the notion promoted by current progressive prosecutors that crime is a social phenomenon, which community services are better equipped to address than prisons. The Progressive Era movement also sought to implement professional norms and practices to promote the values of fairness and proportionality. Contemporary progressive prosecutors inherit this legacy but tend not to emphasize these professional values. The Article concludes that the professional values championed during the Progressive Era are critical, in conjunction with new programs and policies, to ensure that as innovation helps achieve social justice, prosecution remains in the hands of those committed to fair and even-handed justice.
      PubDate: Mon, 23 Nov 2020 11:35:04 PST
  • Expanding the Reach of Progressive Prosecution
    • Authors: Jeffrey Bellin
      PubDate: Mon, 23 Nov 2020 11:35:01 PST
  • Progressive Prosecution in a Pandemic
    • Authors: Chad Flanders et al.
      PubDate: Mon, 23 Nov 2020 11:34:57 PST
  • Can You See and Hear Us, Ms. Smith': Protecting Defendants’ Right to
           Effective Assistance of Counsel When Using Audio and Video Conferencing in
           Judicial Proceedings
    • Authors: Ivaylo Valchev
      Abstract: As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not modern displays but a document ratified in 1788. This Comment discusses how one emerging technology—audio and video conferencing—poses a risk to the right to effective assistance of counsel. The Comment advances three main arguments. First, the use of audio and video conferencing makes it more difficult for a criminal defendant to confront state witnesses. Second, the extent to which audio and video conferencing negatively impacts the right to effective assistance of counsel is dependent on the type of judicial proceeding. Lastly, the current constitutional tests for finding ineffective assistance of counsel are inadequate in cases where audio and video conferencing may be used.
      PubDate: Wed, 13 May 2020 19:25:04 PDT
  • STEPping into the “Wrong” Neighborhood: A Critique of the People v.
           Albillar’s Expansion of California Penal Code Section 186.22(a) and a
           Call to Reexamine the Treatment of Gang Affiliation
    • Authors: Samuel DiPietro
      Abstract: Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious criminal conduct by gang members instead of solely gang-related felonious conduct. The court’s holding in Albillar essentially allows a defendant who is affiliated with a criminal street gang to receive an additional sentence for the commission of any felonious crime regardless of whether the crime had any relationship to the defendant’s gang membership. This Comment argues that such an application of Section 186.22(a) runs afoul of the Supreme Court’s holding in Robinson v. California, where the Court held that punishing an addict for his status of being addicted to drugs amounted to cruel and unusual punishment. While Section 186.22(a) does require a felonious act unlike the statute in Robinson, this Comment examines the Supreme Court’s holdings regarding the constitutionality of hate crime enhancements and concludes that the California Supreme Court’s holding in Albillar exceeds constitutional bounds. This Comment concludes by examining the policy rationale behind the Robinson holding and applying that rationale to gang membership, suggesting that treatment, as opposed to imprisonment, might be the proper solution to California’s criminal street gang problem.
      PubDate: Wed, 13 May 2020 19:25:01 PDT
  • “You May Be Down and Out, But You Ain’t Beaten”: Collective
           Bargaining for Incarcerated Workers
    • Authors: Keith Armstrong
      Abstract: The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs within prisons, such as cooking, cleaning, and manufacturing license plates.After Jones, prisoners have not been able to assert a constitutional right to associate, but they have continued to struggle for labor protections. These efforts have mostly taken the form of unauthorized prison strikes. The largest recent strike involved inmates in over seventeen states.Issues involving prison labor have moved to the forefront of conversations on criminal justice reform. Recently, scholars have examined the ways in which unions of incarcerated workers might make use of federal labor law, including the National Labor Relations Act (NLRA) to gain recognition as collective bargaining units. However, even if these efforts succeed, their impacts would be limited to incarcerated workers involved in the PIE program or to those working in private industries in private prisons. The vast majority of incarcerated workers who do not work in private industries would be excluded.As a complementary approach, and in order to expand labor protections to those incarcerated workers who would not be covered by the NLRA, incarcerated workers may also wish to look to state labor law for protections. This Comment surveys state public employee collective bargaining statutes. Some states categorically exclude prisoners from their definition of “public employee” or do not permit any association of public employees to engage in collective bargaining. However, other states have broad definitions that could conceivably include prisoners. Advocates of incarcerated worker union organizing may wish to focus their efforts on these states. If incarcerated worker unions are able to organize under state or federal labor law, then they may eventually be able to demonstrate that such associations are beneficial rather than detrimental to maintaining order in prisons, which could help chip away at the overbroad holding in Jones.
      PubDate: Wed, 13 May 2020 19:24:58 PDT
  • The Perceptions of Juvenile Judges Regarding Adolescent Development in
           Evaluating Juvenile Competency
    • Authors: Colleen M. Berryessa et al.
      Abstract: This analysis provides the first known in-depth qualitative inquiry into if and how juvenile court judges take the psycho-social immaturity and development of adolescents into consideration when making attributions of adjudicative competency of offenders in juvenile court. Semi-structured interviews were conducted with twenty-seven U.S. juvenile court judges, followed by grounded theory analysis. Competency evaluations from psychologists and the juvenile’s age, history, awareness, and mental capacity influence judicial determinations of competency. Although data show that understandings of adolescent development do play a large role in shaping judges’ understandings of juvenile behavior—particularly related to emotional control, irrational behavior, lack of maturity, and social susceptibility—most judges only connected these characteristics to juvenile offending. Although cognizant that juveniles exhibit attributes that diminish competency-related abilities as part of their adolescent development, the majority of judges still stated that adolescent development is not important to them in assessing juvenile competency, potentially demonstrating a cognitive disconnect on these issues. These results indicate approaches to how judges might think about juvenile competency decisions (“building blocks” vs. “holistic” models) and the need for more direct education and training of judges on the role of adolescent development in competency.
      PubDate: Wed, 13 May 2020 19:24:55 PDT
  • Prosecutorial Declination Statements
    • Authors: Jessica A. Roth
      Abstract: This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, and history-keeping—and their drawbacks. Next, it describes the current landscape of prosecutorial policies and practices on declination statements and shows how prosecutors would benefit from a more express framework of analysis. Finally, it offers such a framework to assist prosecutors in deciding when and how to issue declination statements. That framework suggests that prosecutors should only issue public declination statements when doing so significantly furthers one or more of the interests identified herein, where the risks posed by such statements are minimized, and where their value cannot be realized through other available means, including other types of statements.
      PubDate: Wed, 13 May 2020 19:24:52 PDT
  • Federal Detention and “Wild Facts” During the COVID-19
    • Authors: Gabriel A. Fuentes
      PubDate: Wed, 13 May 2020 19:24:50 PDT
  • Retroactive Legality: Marijuana Convictions and Restorative Justice in an
           Era of Criminal Justice Reform
    • Authors: Deborah M. Ahrens
      Abstract: The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active government promotion of a new cannabis economy present a stark and deeply racialized contrast. This Article argues that, in states where marijuana has been legalized, our policy-making apparatus should acknowledge and move to redress both the failings of our prior system of drug regulation and the social and economic disparities in current law by embracing a concept of “retroactive legality.” Retroactive legality is a framework in which we seek to restore those convicted of marijuana crimes to the rights and civic status they would have had if their conduct had never been illegal. Such an approach would build upon the piecemeal expungement and pardon policies adopted or proposed in some of these jurisdictions but would reach substantially further, by incorporating those convicted of more serious offenses, putting the onus on the state to identify and clear such convictions, and declining to impose additional requirements and costs on those seeking to have their convictions retroactively legalized.
      PubDate: Wed, 13 May 2020 19:24:47 PDT
  • Family Separation Under the Trump Administration: Applying an
           International Criminal Law Framework
    • Authors: Reilly Frye
      Abstract: In April 2018, former Attorney General Jeff Sessions announced the “Zero Tolerance Policy.” The policy significantly increased criminal prosecution of immigrants entering the United States without inspection. Increased adult prosecution directly led to family separation. Parents were sent to federal jail and their children went to the Office of Refugee Resettlement. Neither institution communicated with the other, and the United States government lost track of parents and children. The government separated nearly 3,000 children from their parents, going as far as deporting over 400 parents to their countries of origin while their children remained in the United States. Many of these separated families were seeking asylum. Domestic litigation is ongoing regarding the family separation policy. Yet international litigation could also be an avenue of justice for these parents and their children. Recently, in a September 6, 2018 decision regarding the deportation of the Rohingya people from Myanmar to Bangladesh, the International Criminal Court (ICC) found that the crime against humanity of deportation has a start point and an end point. If just one of these points is within a State Party of the Rome Statute, then the ICC can exercise jurisdiction over the entire crime—even if the crime involves a country that is not a signatory of the Rome Statute like the United States. In the case of the U.S. government’s family separation policy, the starting point is the United States, and the end point is the Central American countries that are State Parties to the ICC, like Mexico, Honduras, El Salvador, and Guatemala. Because these Central American countries are members of the ICC, the crime against humanity of deportation can theoretically invoke ICC jurisdiction over U.S. officials. In short, the ICC could prosecute U.S. government officials for the crime against humanity of deportation that occurred during the Trump Administration’s family separation policy, despite the U.S. not being a signatory of the Rome Statute. Since the U.S. is not a member of the ICC, there would be no obligation for the government to surrender any official indicted by the Court. Indeed, considering former National Security Adviser John Bolton’s recent attack against the ICC regarding the Situation in Afghanistan, it is likely that the U.S. government would do everything possible to delegitimize or ignore any ICC decision concerning the Trump Administration. U.S. government retaliation could come in the form of sanctions, an increase in the number of bilateral treaties, or lack of cooperation. More likely than the government exercising complementarity—arguably the simplest way to avoid an ICC prosecution—the Trump Administration could also use its status as a permanent member of the United Nations Security Council to defer the prosecutor’s investigation. Nonetheless, despite the barriers to enforcement, should the ICC prosecute top U.S. officials for the Zero Tolerance Policy, international criminal law still has a place in denouncing the family separation that occurred in summer 2018. The international community’s perception of a country’s stance on human rights has wide-reaching impacts, even for a global power such as the U.S. The ICC’s reach has grown exponentially due to its recent jurisdictional decision regarding the Rohingya. Any decision regarding ICC prosecution of U.S. officials for the Trump Administration’s family separation policy would have wide-reaching impacts for the world.
      PubDate: Wed, 18 Mar 2020 19:41:01 PDT
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