Berkeley Journal of Criminal Law最新文献

{"title":"Exclusion and Control in the Carceral State","authors":"S. Dolovich","doi":"10.15779/Z383G8P","DOIUrl":"https://doi.org/10.15779/Z383G8P","url":null,"abstract":"Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate. Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable. Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices — the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-d","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129129790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Indecent Exposure: Do Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment?","authors":"A. Vorenberg","doi":"10.2139/SSRN.1926923","DOIUrl":"https://doi.org/10.2139/SSRN.1926923","url":null,"abstract":"This article argues that searches of student’s cell phone should require a warrant in most circumstances. The amount and personal nature of information on a smart phone warrants special Fourth Amendment protection. This issue is particularly relevant in the public school setting where administrators routinely confiscate phones from students caught using them in school. With more frequency, administrators are looking at the phones, scrolling through text messages and photos, and on some occasions, responding to text messages. The U.S. Supreme Court in Safford v. Redding, acknowledges the special considerations that school children should be afforded in part because of the unique subjective view they have of their own privacy. This same unique perspective should similarly be applied to the contents of a student’s cell phone. Over 75% of teenagers carry a cell phone on a daily basis, and many use the device as a private diary and portal for personal data and information. Teens appear willing to capture in their phone’s text or photos their most private world, and this might seem to signal a renunciation of their privacy. However it is because teens are so willing to expose themselves in a world that they think is private that their expectation of privacy in their phones should be accorded substantial protection. Cell phones in and of themselves are not dangerous. They cannot hold drugs or weapons - only information about drugs or weapons. Given that a cell phone contains highly private information, poses no imminent danger, and its contents can be preserved while a warrant is obtained, school officials should be required to get a warrant unless there are exigent circumstances such as immediate, apparent threat to student safety.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133266480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder","authors":"Melissa Hamilton","doi":"10.15779/Z38ZS6W","DOIUrl":"https://doi.org/10.15779/Z38ZS6W","url":null,"abstract":"In common law, criminal culpability rests on two basic foundations of criminal intent, or mens rea, and a voluntary act, which comprises the actus reus. While much of the litigation in criminal cases concerns assigning the appropriate mens rea concept to the particular defendant’s mental state, relatively little debate focuses on the element of actus reus. Indeed, case law and commentators generally have devoted scant attention to fleshing out the voluntary act concept despite the historical consensus of both utilitarians and retributivists that one should not be considered morally or legally culpable for his or her involuntary actions. This paper conceptualizes an overall need to reinvigorate the actus reus requirement as a fundamental principal of criminal culpability. It does so by employing a contemporary problem facing the criminal justice system of combat veterans with Post-Traumatic Stress Disorder (PTSD) who commit acts of unlawful violence, including homicide, either in reflexive actions or during dissociative states triggered by re-experiencing combat-related stresses. While the veterans are often convicted of criminal offenses, studies on PTSD substantively support an argument that such violence may actually be conceptualized as automatism and, therefore, should not qualify as voluntary acts justifying criminal culpability. For example, mental health professionals describe PTSD as a neuropsychiatric disorder that involves hypervigilance, and hyperreactivity. Modern combat training is a likely correlate with its emphasis on muscle memory and reflexive responsiveness in the use of lethal weapons, which are adaptive, survival behaviors in the field of battle. The relationship to automatism is also evident in that PTSD is not merely a cognitive disorder as studies have shown PTSD-related alterations to brain structure and function and neurophysiological performance. Thus, this contemporary problem of PTSD in veterans due to wartime service provides a fresh perspective on which to reconsider the importance of the voluntary act requirement of criminal law.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128070847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Community Right to Counsel","authors":"Laura I. Appleman","doi":"10.2139/SSRN.1824630","DOIUrl":"https://doi.org/10.2139/SSRN.1824630","url":null,"abstract":"Contrary to popular understanding, the Sixth Amendment right to counsel was originally a community right. The existing historical evidence reveals that what we now interpret as an individual right to counsel was, in the colonial era, commonly understood as a right that belonged to the general community. As a result, the conventional history is both incorrect and incomplete, misinforming our current jurisprudential and social understanding of the right to counsel. In response, this Article provides the missing historical and constitutional reasoning for the creation of the Sixth Amendment right to counsel. Critically, this collective right to counsel has import for our current regime of criminal punishment and sentencing. Since the Court has consistently relied on the colonial and Founding-era history to chart the boundaries of the modern right to counsel, we must fully understand the contours and ramifications of the historical right to counsel to plot our future path. Moreover, there are some important implications of my historical findings on the future of the right to counsel. I contend that when applied, the collective right to counsel has important implications for three aspects of the right to counsel: 1) self-representation; 2) appointed counsel; and 3) ineffective assistance of counsel, particularly in light of Padilla v. Kentucky. I conclude that invoking a collective right to counsel alongside an individual right to counsel would help ensure better outcomes for both criminal defendants and their communities.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125552325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lawrence's Criminal Law","authors":"J. Strader","doi":"10.15779/Z38MG8V","DOIUrl":"https://doi.org/10.15779/Z38MG8V","url":null,"abstract":"In Lawrence v. Texas, the United States Supreme Court issued a potentially revolutionary criminal law decision. When overturning its earlier ruling in Bowers v. Hardwick and holding Texas’s sodomy statute unconstitutional, the Court plainly rejected majoritarian morality as the governing criminalization theory. Instead, the Court adopted the “harm principle,” requiring that governments justify criminal laws based upon a demonstrable showing of harm. The Court also required that the lower courts, when assessing criminal laws affecting sexual behavior, do so in a sexually neutral manner. In this way, the Court rejected the heteronormative paradigm that the Hardwick decision had constitutionalized.When applying Lawrence, however, lower courts have been remarkably resistant to the decision’s substantive criminal law doctrine. Courts continue to justify criminal statutes based upon majoritarian morality. Moreover, courts continue to apply heteronormative principles to laws governing sexual behavior in ways that cast sexual minorities into effective sexual apartheid. This article analyzes Lawrence as the groundbreaking criminal law decision that it is. Focusing on sodomy and sex toy laws, the article uses Lawrence’s underlying rationale to conceptualize a harm-based, sexually neutral approach to criminalization. The article then constructs a framework for applying Lawrence’s substantive criminal law going forward, requiring that courts assess criminal statutes under the meaningful rational basis test that Lawrence requires.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116200567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Racializing Disability, Disabling Race: Policing Race and Mental Status","authors":"Camille A. Nelson","doi":"10.15779/Z38X040","DOIUrl":"https://doi.org/10.15779/Z38X040","url":null,"abstract":"This article focuses on police practices in arresting and detaining criminal suspects who have mental illnesses. It identifies three modalities police may adopt when detaining a mentally ill suspect: medical modality (and its subset the family mode), the criminal modality, and the disciplinary modality. This article examines archetypal cases in which harsher treatment of a suspect may be meted out by the police against mentally ill persons of color.To illustrate the different modalities, this article examines the case study of Donald Winters. Mr. Winters was a Caucasian male who was diagnosed with Delusional Disorder. He had threatened to kill the police officers when they attempted to apprehend him. Police understood they were dealing with a mentally ill suspect, and they restrained themselves from using violence in order to subdue him. In Coghlan v. Phillips, Mr. Coghlan, a white male known to have a criminal record and a history of mental illness, fired four to ten shots at police officers when they initially attempted to arrest him. The police officers did not return fire, but returned with a bullhorn and told Mr. Coghlan they wished to take him to a doctor. These cases are illustrative of the medical and criminal modalities and represent more appropriate police responses to mentally ill suspects. However, police seemingly demonstrate far less tolerance for suspects whose Suspect Identity Construction (“SIC”) is both a minority and mentally ill.In Banks ex rel. Banks v. Modesto City Schools District, Rosie Banks was a thirteen year old, autistic, African American girl attending a junior high school. Rosie entered a new school and at first behaved in an aggressive manner. She was taken to the principal’s office where an officer confronted Rosie as she became more aggressive and pepper sprayed her in the face. In Reynolds v. City of Little Rock, John Willie Reeves, an African American man known by police to be mentally ill, was shot to death by several officers after waving a pocket knife. In Ali v. City of Louisville, Mr. Marlby was a homeless African American man who was known by several officers to be mentally ill. He was shot to death after an encounter with police. In each of these cases, police officers often chose the disciplinary modality, and often without prior utilization of a lesser modalities. In these and other cases, the police do not utilize lesser modalities despite their knowledge that the suspect is mentally ill. This article explores the intersection of race and mental status as one that attracts heightened police scrutiny and which disparately leads to excessive use of force. It appears from the case law that the selection of the modality often depends on the racialization of the alleged offender.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127980117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice John Paul Stevens and Capital Punishment","authors":"Christopher E. Smith","doi":"10.15779/Z38862W","DOIUrl":"https://doi.org/10.15779/Z38862W","url":null,"abstract":"","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"64 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120928151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"People v. Sarun Chun - In Its Latest Battle with Merger Doctrine, Has the California Supreme Court Effectively Merged Second-Degree Felony Murder out of Existence","authors":"David Mishook","doi":"10.15779/Z38HP68","DOIUrl":"https://doi.org/10.15779/Z38HP68","url":null,"abstract":"In July of 2009, in the latest salvo in its long struggle to limit California's second-degree felony-murder doctrine, the California Supreme Court announced its decision in People v. Sarun Chun.1 The decision's two holdings at once undercut the doctrine's use in criminal prosecutions and entrench second-degree felony murder in California law. First, after more than forty years of dicta to the contrary, the Court held that second-degree felony-murder doctrine was statutory and not, as was previously understood, judicially created. At the same time, the Court limited the scope of felony murder by interpreting anew its \"merger doctrine\"-the Court-made exception to felony murder in which certain underlying felonies \"merge\" with a resulting homicide, 2 precluding a felony-murder charge. Chun, the latest of many changes to merger doctrine since it was first announced in 1969 in People v. Ireland, dramatically reinterprets the way merger functions in second-degree felony-murder prosecutions. Under the new Chun standard, all felonies that contain an \"assaultive\" element merge per se with the resulting homicide and may no longer serve as the basis of a felonymurder charge. Much like the related \"inherently dangerous felony\" limitation for felony murder, the Court's new test is intended to create predictability for the practitioner, since judicial determinations of merger will now be based on the face of the statute, and no longer on the particular facts of a defendant's","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"42 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113974615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Improbable Cause: A Case for Judging Police by a More Majestic Standard","authors":"Melanie D. Wilson","doi":"10.15779/Z384G9F","DOIUrl":"https://doi.org/10.15779/Z384G9F","url":null,"abstract":"This article presents findings from an empirical study of judicial orders in one Midwestern federal district court over a twenty-four month period. The study analyzes trial court decisions to determine whether, as scholars often contend, judges consistently side with the prosecution when a defendant claims that the police lied during the criminal investigation of her case. The study also looks at the frequency with which defendants make such arguments, the types of case in which defendants claim police lies, and the strength or weakness of the evidence in cases that do and do not persuade trial judges that the police have lied. Relying on findings from the study, the article concludes that trial judges are probably perpetuating police perjury by failing to denounce police dishonesty with their rulings. The article then uses the findings to argue that the Supreme Court’s current conception of the exclusionary rule naturally leads trial judges to deny motions to suppress and undermines ideals a majority of the Court purports to advance. The article ultimately argues for Justice Ginsburg’s “more majestic” conception of the exclusionary rule, which better promotes values of a dependable justice system.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128972815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Clemency in California Capital Cases","authors":"M. Moylan, L. Carter","doi":"10.15779/Z38KP7C","DOIUrl":"https://doi.org/10.15779/Z38KP7C","url":null,"abstract":"This article is a survey of procedures and reasoning involved in California clemency in the context of the death penalty. Though the article is principally descriptive in nature, our analysis includes some prescriptive recommendations. This article grew from a report that we prepared at the request of the California Commission on the Fair Administration of Justice. We undertook a study of clemency in capital cases throughout the years of California’s use of the death penalty. Our goal was to provide the Commission with as much information as possible about the procedures and reasons for granting or denying clemency in capital cases. In addition to researching documentary materials, we also interviewed many individuals who have been involved in capital clemency proceedings and policy.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125234227","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}