VOLUME 53 | SPRING ISSUE
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
SPRING ISSUE NOTES
OUT ON BAIL: WHAT NEW YORK CAN LEARN FROM D.C. ABOUT SOLVING A MONEY BAIL PROBLEM
53 Am. Crim. L. Rev. 799
This Note argues the current proposed amendments for New York's bail laws-- which would require that judges consider a defendant's dangerousness in addition to his flight risk when setting bail--will not meaningfully reform its current system. If the state wants judges to incorporate a defendant's public safety risk into their bail determinations in order to end New York's reliance on money bail, its bail laws must also include a provision that prohibits courts from setting bail at an amount a defendant cannot afford, for the sole purpose of holding them pre-trial. For an example of such a provision New York need only look as far as the District of Columbia. D.C. is the city that spurred the first wave of bail reform in the 1960s and is the best case study for jurisdictions across the country looking to reform their bail systems today.
Section I discusses the history and evolving use of bail from its original purpose in the United States, as well as the several decades-long history of bail reform attempts in New York. Section II discusses New York's current bail statute and the most recent reforms on the table, focusing specifically on the Chief Judge of the New York Court of Appeals' proposed amendment to the current statute. It then discusses the critique of this amendment (primarily from the public defense community) that judges already consider sub rosa whether they believe a defendant poses a public safety risk in making bail determinations (i.e., whether to set bail and at what amount). Thus, according to this critique, amending the statute to formally authorize judges to consider something they already informally take into account will not produce a different result. As a result, New York will remain just as reliant upon money bail as before the amendment. Section III suggests a solution to the problems posed in Section II: look to D.C.'s success in effectively eliminating money bail. Specifically, Section III suggests that New York adopt two key parts of the D.C. bail model, first by amending its bail statute to include language that prohibits judges from setting high bail to detain defendants they believe are public safety risks (i.e., setting it at an amount the defendant cannot afford resulting in his pre-trial incarceration), and second by ensuring preventive detention is available to judges, for a small category of offenses where a defendant poses such a significant public safety concern that releasing him pretrial is untenable. Finally, Section III discusses some of the critiques of trading in a money bail system for one that relies on preventive detention. Ultimately, the note concludes that limited preventive detention for the small percentage of defendants' judges will never feel comfortable releasing pre-trial is preferable to a bail system that systemically penalizes indigent defendants.
RESUSCITATING DIRKS: HOW THE SALMAN "GIFT THEORY" OF TIPPER-TIPPEE PERSONAL BENEFIT WOULD IMPROVE INSIDER TRADING LAW
53 Am. Crim. L. Rev. 833
Section I of this Note will provide an overview of insider-trading jurisprudence as it developed pre-Newman. Section II will provide an in-depth discussion of the factual background of Newman and the legal reasoning of the Second Circuit's decision that motivated the current debate surrounding the personal benefit standard. Section III will summarize the three distinct theories of the personal benefit standard that are currently supported by circuit precedent and that are expected to be reconciled by the Supreme Court's decision in Salman.
In Section IV, this Note will argue that an endorsement by the Supreme Court of the "gift theory" of the personal benefit standard in Salman would positively improve insider trading jurisprudence and enforcement. First, the "gift theory" of tipper-tippee insider trading liability is consistent with Newman, prior Supreme Court insider-trading precedent, and Congressional intent. The "gift theory" has been interpreted, and likely will continue to be interpreted by most jurists, in a manner that properly maintains the scienter requirement necessary for a criminal conviction. Second, the "gift theory" will likely not threaten the overall efficacy of insider trading enforcement. Instead, it will improve prosecutorial discretion by incentivizing prosecution of initial tippers and tippees rather than remote recipients of information. Third, this enhanced discretion will lead to enforcement that *836 more effectively deters illegal disclosures but avoids chilling the free flow of information that is essential to efficient capital markets.
HACKING IMMUNITY: COMPUTER ATTACKS ON UNITED STATES TERRITORY BY FOREIGN SOVEREIGNS
53 Am. Crim. L. Rev. 861
This Note evaluates the capacity of the American legal system to respond to cross-border computer attacks. Section I provides an overview of the Foreign Sovereign Immunities Act ("FSIA") in the context of hacking. Part A lays out the civil and criminal bases for foreign sovereign immunity. Part B introduces § 1605(a)(5), the "non-commercial tort exception," which is essential to Mr. Kidane's civil claim. Section II examines the two issues that any foreign sovereign hacking claim that proceeds under § 1605(a)(5) will encounter-- delimiting the situs of the tort and defining whether the tortfeasor had "discretion" to act. Part A describes the weaknesses of a narrowly construed "whole tort" rule for determining situs and suggests that courts applying such a test exercise flexibility or adopt a more appropriate "territory of intended effect" rule. Part B chronicles the confused jurisprudence on the "discretionary exception" to liability, recommending that international law is the proper place to find clarity and suggesting that domestic courts should look to established practices of other nations in order to remain true to immunity law as articulated by the Supreme Court. Section III considers the many legal tests for situs and "discretion" in the context of Mr. Kidane's claims, concluding that his claims under § 1605(a)(5) should prevail. Even though criminal law is applicable to the conduct of foreign sovereigns only in narrow circumstances, well-established law counsels that sovereigns should not be immune from liability in the United States for cross-border hacking.
Stephen J. Schultze
VOLUME 53 | WINTER ISSUE
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.
WINTER ISSUE NOTES
Unreasonably Immune: Rethinking Qualified Immunity in Fourth Amendment Excessive Force Cases
53 Am. Crim. L. Rev. 409
This note will evaluate the intersection of the reasonableness inquiry at the center of Fourth Amendment excessive force claims, and the reasonable person standard of the qualified immunity defense to such claims. Section I will begin with a summary of the development of the qualified immunity doctrine as it relates to actions filed under 42 U.S.C § 1983 and Bivens for the last forty years. Section II will critique the broader standard embraced in Saucier as based on unsound logic, and it will argue that the overlapping Fourth Amendment and qualified immunity standards have begun to set longstanding Fourth Amendment precedents adrift, skewing and minimizing courts' oversight of police departments' use of force. In Section III, this note will evaluate and recommend alternative standards for determining the availability of the qualified immunity defense. This note concludes that the Court would do well to clarify the law by replacing the reasonableness standard with a "necessary and proportionate" standard.
Permission to Come Aboard (An Adversary's Network)? Ensuring Legality of Enhanced Network Security Measures Through a Multilayer Permission Acquisition Scheme
53 Am. Crim. L. Rev. 437
At any given moment, intruders are attempting to gain access to computer networks across America. With would-be assailants ranging from amateur hackers to sophisticated cyber-criminal groups and state-sponsored actors, a major company can easily face thousands of intrusion attempts daily. Even as companies respond with amplified defenses, the sheer volume of intrusion attempts has the proverbial deck stacked against the host network. This is particularly true when a single breach can create severe consequences for a business if financial data or sensitive proprietary information is lost. In this challenging climate, some companies and cybersecurity professionals have expressed a need to go beyond the traditional passive models of network defense and use more aggressive techniques, referred to in this Note as "enhanced network security measures" ("ENSM"). The deployment of such tools, however, faces potential challenges under anti-hacking and electronic surveillance statutes. Proponents of the techniques have argued that the statutes do not apply, or if they do, defenders should be able to rely on a necessity defense or a superseding right to self-defense, even in cyberspace. These theories, however, have not yet been tested in court, and, in the absence of case precedent, their legal basis is too uncertain for most companies to comfortably rely upon them. This Note argues that, even where an ENSM is covered by the Computer Fraud and Abuse Act ("CFAA") or the Electronic Communications Privacy Act ("ECPA"), the would-be victim can ensure legality by obtaining consent and authorization for the activities from an intruder through a robust multi-layer permission-acquisition scheme, including banners, terms of service ("TOS"), and user agreements. In doing so, the would-be victim can shelter itself from criminal liability while still aggressively defending its networks.
More Than Advisory: How Courts and the Justice Department Can Work Together to Fill Gaps in the Foreign Corrupt Practices Act
53 Am. Crim. L. Rev. 479
Section I of this Note provides background on the elements of the FCPA and its affirmative defenses, as well as the mechanisms of the DOJ Advisory Opinions process. Section II offers arguments as to why courts can and should utilize FCPA Opinions as persuasive authority. Section II also presents Advisory Opinions issued under the Anti-Kickback Statute, a similar anti-corruption law, as an analog to the FCPA. Section III examines objections to judicial use of FCPA Opinions, including the rule of lenity, the act of state doctrine, and separation of powers concerns. Section III concludes that these objections—while not without merit—do not foreclose litigants or courts from using FCPA Opinions.
The Constitutionality of Broadening Clergy Penitent Privilege Statutes
53 Am. Crim. L. Rev. 515
Given the varying and conflicting clergy-penitent statutes and lack of case law on the issue, this paper will attempt to formulate a vision of a privilege statute that adequately respects the compelling and sometimes religiously-mandated need for spiritual advice, and that does not violate the constitutional safeguards of the Free Exercise Clause and Establishment Clause. Part II will discuss the origins of confessional privilege. Part III will briefly discuss the history, purpose, and specific application of the Free Exercise and Establishment Clauses, arguing that the privilege is likely constitutionally mandated and, at a minimum, is constitutionally sound. Part IV will critique New Hampshire's confessional privilege statute as an example of a current statute that violates both the Free Exercise Clause and the Establishment Clause by granting the privilege solely to the penitent and applying to too few religions. Drawing from this history and analysis, Part V will attempt to formulate a broad uniform model code on confessional privilege that is consistent with the Constitution and the underlying purposes of criminal law.
VOLUME 53 | FALL ISSUE
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
This Article will demonstrate, the public-private partnership endorsed by Congress in the federal False Claims Act has been, and will continue to be, the driving force in prosecuting allegations of fraud under the Medicare Hospice Benefit. The scope of this Article is to examine the general trend of Medicare Hospice fraud enforcement actions, periodically referencing the particulars of the Kolodesh case as a paradigm.
James F. Barger
"Private Justice" and FCPA Enforcement: Should the SEC Whistleblower Program Include a Qui Tam Provision?
The most important--and under-recognized--fact about the enforcement of transborder anti-corruption legal regimes is this: governments cannot realistically expect to be able to do it effectively without enlisting the help of whistleblowers and the private bar. Various international conventions that require criminalization of transborder corruption recognize that civil remedies may be effective, but they do not require state parties to implement such remedies. This article posits that "private justice," defined expansively as private persons initiating, or assisting in the launching, of lawsuits to detect and deter public harms, must be employed in conjunction with governmental criminal enforcement if we are to achieve any real success in containing the contagion of transborder corruption. Not all states' legal systems are hospitable to private justice, and the United States is one of the few countries that use it so comprehensively. This may arise from a cultural antipathy toward whistleblowers, a preference for judicial investigations of wrongdoing, or a disinclination to adopt the structural incentives--such as contingency fee arrangements--that make some such mechanisms work. But those states whose legal systems are congenial to the notion ought seriously to consider harnessing the power of private justice in the war against corruption and its many collateral ills.
Julie Rose O'Sullivan
Symposium Comment: Lessons From the Private Enforcement of Healthcare Fraud
As American Criminal Law Review ("ACLR") symposium commentators contemplate whether Congress should create a right for private citizens to help enforce the anti-bribery provisions of the Foreign Corrupt Practices Act ("FCPA"), this article imparts lessons from the private enforcement of health care fraud under the False Claims Act ("FCA").
This Article will apply lessons from the private enforcement of the FCA in the context of health care fraud litigation and investigations to the question of whether Congress should create a private right of action to enforce the FCPA's anti-bribery provisions.
Section I of the Article will contrast the harms that the FCPA and health care fraud laws seek to prevent. This Article will demonstrate why the FCA cannot be used to enforce the FCPA because bribing foreign officials does not directly cheat the federal government out of money.
Section II will discuss the frontline fraud detection challenges at the Center for Medicare and Medicaid Services ("CMS"), which reimburses Medicare participants for covered health care costs. The discussion will show why the FCA is critical to the government's efforts to recoup fraudulently spent Medicare funds. It will contrast the aggressive approach to fraud prevention adopted by private health insurance companies with CMS' passive approach to the same task, and it will discuss the ultimate regulatory capture failure: corrupt foreign governments.
Section III will examine how the private enforcement of health care fraud laws has aided, and has been aided by, criminal and administrative investigations of the same conduct. This Section will then probe the possible impact of a right of private action against companies and individuals accused of bribing foreign officials on criminal investigations of the same conduct.
Section IV will highlight the limitations of the FCA (e.g., public disclosure bar, the first-to-file rule, and declination) and discuss how those limitations may solve some, but not all, of the questions regarding the prudence of private enforcement of the FCPA's anti-bribery provisions.
Joshua A. Levy
FALL ISSUE NOTES
Testing Congress's Foreign Commerce and Treaty Powers: A New, (Un)constitutional Tool for Combating American Sex Tourists?
This note argues that the newly amended § 2423(c) is not supported by one of Congress's enumerated powers, but in fact rests solely on the Treaty Power. While the new statute tests the limits of Congress's extraterritorial jurisdiction under the Due Process Clause and principles of international law, significant constitutional questions arise under the Foreign Commerce Clause and Congress's Treaty Powers. Constitutional case law suggests that because the statute no longer has a foreign travel requirement, Congress was without authority under the Foreign Commerce Clause to enact it. Because of this lack of authority, the constitutionality of § 2423(c) likely turns on whether or not Congress had independent Treaty Power to enact the statute. This situation gives rise to the question of whether Congress is prohibited from enacting non-self-executing treaties with statutes that otherwise fall outside the scope of Congress's enumerated powers. The concurring opinions in Bond, while not dispositive, suggest that because Congress did not have independent Foreign Commerce Clause authority to enact § 2423(c), Congress did not have the authority to enact § 2423(c) via their treaty implementation powers. Therefore, this note argues that because Congress lacked authority under an enumerated power, the constitutionality of the amended § 2423(c), rests solely upon Congress's authority under the Treaty Power, which has been called into question by the Supreme Court's recent decision in Bond.
Gregory Van Houten
Balancing Rehabilitation and Punishment: Combining Juvenile Court Waiver Mechanisms to Create a Balanced Justice System
This note will argue for an approach to the waiver of juveniles that balances the juvenile court's goals of rehabilitation with the concerns of retribution, protection and deterrence in the adult criminal justice system. Specifically, it will propose a system that uses different waiver mechanisms based on discrete age range and type of offense. This system would reconcile the goals of punishment with a contemporary understanding of juvenile responsibility. Section I will explore the juvenile justice system in the United States and describe how its purpose has evolved. Section II will explore how states have responded to the Supreme Court's extension of criminal procedural protections to juveniles. Section III advocates a solution to the problems discussed in Section II: a recognition of distinct age ranges within the overall juvenile classification, with different waiver mechanisms used for each age range to mitigate incongruities between a juvenile's sentence and his potential for rehabilitation. Such a waiver system could better balance the rehabilitative goals of the juvenile court system with the punitive goals of the criminal courts.
Hazy Future: The Impact of Federal and State Legal Dissonance on Marijuana Businesses
The discrepancy between federal and state marijuana law and the resulting uncertainty for marijuana businesses undermines the ability of states such as Colorado and Washington to develop a successful, regulated marijuana industry as intended through legalization. In comparison to the prosecutorial discretion approach utilized thus far by the Obama Administration, an administrative rescheduling of marijuana in the CSA by the President would align federal and state criminality, reduce the risks faced by marijuana businesses, and enable the development of successful, regulated marijuana industries in states that have passed legalization legislation.
Promoting Parental Guidance: An Argument for the Parent Child Privilege in Juvenile Adjudications
This Note argues that the absence of a parent-child testimonial privilege is incompatible with the juvenile justice system's goal of rehabilitating delinquent youth. Section I discusses juvenile justice history in the United States and the current purposes of state juvenile justice systems. Section II provides a brief overview of privilege laws in the United States and examines the current status of the parent-child testimonial privilege in federal courts, the fifty states, and the District of Columbia. In Section III, this Note argues that one of the primary aims of most juvenile courts—to rehabilitate and care for delinquent youth—will be best served by recognizing a parent-child testimonial privilege in juvenile proceedings. Specifically, this Note suggests that the privilege should cover confidential communications between minor children and their parents and should permit parents to refuse to testify against their minor children. It also explains why a limited form of the privilege should protect minor children in adult criminal proceedings in order for the privilege to effectively serve its purpose. Section IV encourages legislatures to recognize the proposed parent-child privilege and provides a model statute comprised of two sections: one covering confidential communications and the other covering parents' adverse testimony. Section IV also argues that, absent legislative action, juvenile courts should recognize the proposed privilege because compelling parents to testify against their children contradicts state juvenile justice systems' statutory purposes.