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VOLUME 53 | SPRING ISSUE ARTICLES
TRANSFORMATION THROUGH ACCOMMODATION: REFORMING JUVENILE JUSTICE BY RECOGNIZING AND RESPONDING TO TRAUMA
53 Am. Crim. L. Rev. 549
This Article argues that our judicial system and legislatures, when crafting juvenile justice law, policy, and practice, cannot stop with merely incorporating the research behind the impact of normal adolescent development on the decisionmaking abilities of youth; they must also incorporate the research behind how the experience of trauma can further diminish such decision-making abilities. Section I provides an overview of normative childhood development, specifically highlighting key distinguishing features between adolescence and adulthood and explores the legal relevance that these key normative differences have to criminal law. Section II introduces trauma, the impact that trauma can have on the developing brain and stress response system, and the manner in which trauma manifests itself in the day-to-day lives of adolescents. Section III argues that the juvenile and criminal justice systems should accommodate trauma—just as they are increasingly accommodating the developmental differences between adolescents and adults—in light of recent research, case law, and existing legislative frameworks. Section III proposes that the juvenile justice system adopt a narrow goal of recidivism reduction while also implementing systemic changes that effectively accommodate the impact of childhood trauma.
Eduardo R. Ferrer
THE DRUG COURT PARADIGM
53 Am. Crim. L. Rev. 595
Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement's influence on recent sentencing policies outside the context of specialized courts. This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a "solution," it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens. This Article locates the current frame's origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define "success" in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public's appetite for criminal justice reforms that meaningfully reduce mass incarceration.
Jessica M. Eaglin
TRAUMA INFORMED JUVENILE JUSTICE
53 Am. Crim. L. Rev. 641
A contemporary understanding of trauma must permeate the juvenile justice system through its framework, inform the mindset of all of its participants, and drive all reforms. This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. The benefit to a trauma-informed approach is long-term community safety and a significant reduction of the current population of juvenile inmates.
In Section I, this Article examines the intersection of childhood trauma and offending. The experience of trauma, and childhood trauma in particular, is pervasive amongst the population of children in the juvenile system. Section II situates trauma within the developmental framework youth. The Supreme Court has held that advancements in science informing how young people behave and why this science must have an impact in our treatment of youth in our juvenile and criminal courts. Section III explains how current justice system interventions fail to identify and constructively respond to trauma sufferers. Section IV sets out principles for trauma-informed justice reform. In particular, the prevalence of trauma exposure in the juvenile justice population calls for a presumption of trauma suffering. This Article will raise and address some challenges to trauma-informed reforms, including how to educate players in the system, accurately identify trauma, and reallocate resources.
SYSTEMIC FORUM SELECTION AMBIGUITY IN FINANCIAL REGULATION ENFORCEMENT
53 Am. Crim. L. Rev. 693
The growing use of administrative proceedings in financial regulation, as an alternative to criminal enforcement, has raised concerns about forum selection ambiguity. These concerns led to challenges of forum selection ambiguity for under-criminalization, expropriation of defendants' rights, and harm to the principle of legality. Contemporary literature identifies ambiguity in forum selection and describes it as a discretionary problem. Much of today's literature therefore calls for clear forum selection guidelines. As a step towards addressing the ambiguity problem, the SEC recently issued guidance on its approach to forum selection in contested actions.
This Article suggests that the SEC has taken a step in the wrong direction. Contrary to the current literature, I argue that forum selection ambiguity does not stem from the lack of clear policy guidelines, but rather from the legal theory behind them, which has created systemic ambiguity in punitive forum selection. Due to this ambiguity, not only can the regulated entity, on its part, not know in advance whether its conduct will be deemed criminal or administrative, but the regulator herself cannot justify her forum selection decision coherently.
Eithan Y. Kidron
INFORMANT WITNESSES AND THE RISK OF WRONGFUL CONVICTIONS
53 Am. Crim. L. Rev. 737
Several studies in the last two decades have revealed that false criminal informant testimony is a leading factor in wrongful convictions, along with false confessions, eyewitness misidentification, and faulty forensic science. Although a great deal more remains to be done, many jurisdictions have implemented evidence-based reforms to these last three categories of evidence. Policy about criminal informants, however, seems to be stubbornly stagnant, and relevant social science is virtually nonexistent. This Article questions the relative lack of attention to informant testimony and suggests that the dangers posed by informant testimony are both greater and different than previously thought. Unlike much of the prior literature on the subject, this Article carefully distinguishes between jailhouse informants and other types of informant witnesses, especially accomplices. Although both categories of informants pose some of the same risks to the reliability of proceedings, accomplice witnesses pose additional risks--many enabled by rules of evidence, trial practices, and psychological phenomena--that have not yet been fully appreciated in the literature. After identifying these concerns, this Article concludes with recommendations for reform--and areas requiring further study-- with the aim of developing a set of evidence-based best practices for the use of informant testimony.
Jessica A. Roth
VOLUME 53 | WINTER ISSUE ARTICLES
Representing Rapists: The Cruelty of Cross-Examination and Other Challenges for a Feminist Criminal Defense Lawyer
53 Am. Crim. L. Rev. 255
This essay is not about the ethical, procedural, and constitutional reasons that criminal lawyers must vigorously cross-examine witnesses at trial no matter how truthful they may be and no matter the alleged crime. Instead, I will discuss how it actually feels to confront and cross-examine alleged victims of sexual assault, knowing (or strongly believing) that they are telling the truth, and how to come to terms with those feelings. My aim is to dig a little deeper, and be a little more honest than battle-weary criminal defense lawyers tend to be.
Part I addresses the broader context of the current criminal justice system, especially in relation to convicted rapists and other sex offenders; Part II contemplates the experience of women and children who have been sexually assaulted, drawing on several "rape memoirs" and my own cases; Part III explores what effective defense lawyering looks like in these cases and how it feels for witness and lawyer; Part IV discusses how to manage inevitable feelings of dissonance and distress; and Part V introduces a "Feminist Defense Ethos."
The Story of Federal Probation
53 Am. Crim. L. Rev. 311
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission ("the Commission"), pursuant to the Sentencing Reform Act of 1984 ("SRA"), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission's policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades.
This Article assesses those critics' claims about federal probation sentences and, in the process, tells the story of federal probation--beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress's directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much--or even more-- responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
Brent E. Newton
Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures
53 Am. Crim. L. Rev. 349
Section I of this Article will examine the Supreme Court's foundational decisions regarding the requirements for the government to show probable cause and the lower standard of reasonable suspicion for less intrusive searches and seizures. Section II will focus on the Court's application of the reliability requirement for determining reasonable suspicion in the two cases that are directly on point with the facts and legal issues raised in Navarette v. California. Section III will explore the Court's holding in Navarette-- examining the Court's misapplication of the principles of previous holdings and the flawed reasoning used to justify the reliability of an anonymous, uncorroborated 911 call. One of the methods offered by the Court to show reliability involved the application of arguably related hearsay exceptions. Accordingly, Section IV will assess the propriety of using evidentiary principles in reaching determinations of constitutional law. The Article will conclude with a suggested approach for determining reliability in cases that rely on the presence of reasonable suspicion to justify a seizure protected by the Fourth Amendment.
Plea Bargain Negotiations: Defining Competence Beyond Lafler and Frye
53 Am. Crim. L. Rev. 377
Virtually every criminal conviction in the United States is concluded through plea bargaining. Yet the Supreme Court, in the companion cases of Lafler v. Cooper and Missouri v. Frye, has only recently begun to look more critically at plea bargaining to ensure that defendants' constitutional rights are protected in the process. However, as Frye illustrates, the Court has declined to examine what constitutes competent negotiation in plea bargains by dismissing analysis of the negotiation process itself as a question of "personal style" for which standards cannot be set. Instead, the Court has only examined effective assistance of counsel claims in one phase of plea bargaining: the client counseling phase. The Court's reluctance to more fully examine competent assistance of counsel during all phases of plea bargaining, not simply the client counseling phase, reflects the Court's failure to consider developments in the field of negotiation over the last thirty years.
VOLUME 53 | FALL ISSUE ARTICLES
Life, Death, and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It
James F. Barger
"Private Justice" and FCPA Enforcement: Should the SEC Whistleblower Program Include a Qui Tam Provision?
Julie Rose O'Sullivan
Symposium Comment: Lessons From the Private Enforcement of Healthcare Fraud
Joshua A. Levy
ANNUAL SURVEY OF WHITE COLLAR CRIME
A comprehensive topic-by-topic summary of white collar crime intended to provide practitioners with a point of reference when they find themselves in an unfamiliar area of law. Visit the ASWCC.