Grief is something we all experience at some point in our lives. When a child experiences grief and loss, those emotions, if not addressed, can cause adverse effects. Many of our country’s detained youth have fallen victim to these effects because they have been unable to address the underlying grief that causes their behaviors. Because of this, this Article advocates for creating a trauma-informed pretrial diversion program focused on helping grieving youth. First, this Article examines the overwhelming number of grieving children in our juvenile justice system, and how their grief has led them to where they are today. Second, this Article discusses what pretrial diversion is and why it should include assistance for these youth. Third, this Article shows that these programs do not exist for our youth currently and showcases the need for this to be added now. Fourth, this Article examines what a trauma-informed model looks like, and how it would look in a pretrial diversion program. Fifth, this Article explains how this trauma-informed pretrial diversion program would benefit the youth who encounter the juvenile justice system. Finally, this Article lays out what steps juvenile courts nationwide would have to take to implement a trauma-informed pretrial diversion program to help grieving children.
Cite as: Sydney Ford, Losing Someone Then Losing Yourself: Helping Juveniles in the Justice System Experiencing Grief With a Trauma-Informed Pretrial Diversion Program, 112 J. Crim. L. & Criminology Online 197 (2022).
The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the second in a series of two essays that explore Reginald McFadden’s commutation. This Part considers whether, in hindsight, there was any sound basis for McFadden’s release given the policy grounds for commutations and describes the ample indications in McFadden’s record that his sentence should not have been commuted, the changes in Pennsylvania’s commutation process that make it unlike that the mistakes that led to his release will reoccur, and the further reforms required to restore confidence and efficacy to the commutation process.
Cite as: Regina Austin, The Saga of Reginald McFadden—“Pennsylvania’s Willie Horton” and the Commutation of Life Sentence in the Commonwealth: Part II, 112 J. Crim. L. & Criminology Online 163 (2022).
The U.S. Supreme Court established the “personal benefit” test in Dirks v. SEC to determine whether a tippee assumed a fiduciary duty to not trade based on or disclose inside information when a tipper breached his or her fiduciary duty by improperly disclosing such information to the tippee. Under the personal benefit test, a tipper breaches his or her fiduciary duty if the tipper derives a personal benefit, either directly or indirectly, from disclosing the inside information to a tippee. The Supreme Court provided examples as to what constitutes a personal benefit, such as the tipper’s expectation of reputational benefits that will lead to future profits, receiving a quid pro quo from the tippee, or providing inside information as a gift to a relative or friend. However, the examples provided in Dirks were too broad and left other courts without a definitive answer as to how to identify a personal benefit. The Second Circuit and the Supreme Court attempted to refine the application of the Dirks personal benefit test in United States v. Newman, Salman v. United States, and United States v. Martoma. This line of cases culminated in the Second Circuit’s recent decision in United States v. Blaszczak in which the Second Circuit declined to apply the Dirks personal benefit test to securities fraud and insider trading claims brought under Title 18 of the federal criminal code. This Comment discusses the origins of insider trading law in the United States and the subsequent development of the Dirks personal benefit test, examines the effects of the Second Circuit’s decision in Blaszczak on insider trading law, and recommends how the body of insider trading law can move forward following Blaszczak.
Cite as: Curtis A. French, Friends Without Benefits: Criminal Insider Trading Liability and the “Personal Benefit” Test After Blaszczak, 112 J. Crim. L. & Criminology Online 135 (2022).
This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, an officer’s “duty to intervene” when observing improper police application of the chokehold, and the type of sanction attached to a chokehold policy violation (criminal and/or administrative). Following the presentation of chokehold policy variance, the authors recommend an absolute bar of both air chokes and carotid chokes. However, in contemplating such a policy, policymakers should consider whether an officer authorized to use deadly force but barred from applying the air or carotid choke will be inclined to use his firearm as a force alternative.
Cite as: Trevor George Gardner & Esam Al-Shareffi, Regulating Police Chokeholds, 112 J. Crim. L. & Criminology Online 111 (2022).
The classic example of the necessity defense involves a prisoner escaping from a burning prison. Surely, the law would not require them to stay in the prison when doing so would put their life at an immediate and grave risk. This example epitomizes the purpose of the necessity defense; society would rather the prisoner survive and leave prison than die ablaze while obeying the letter of the law. In recent years, the difference between the two justification defenses of necessity and duress has become blurred, especially in cases involving prison escape. Both are equally applicable, and both are relevant in the context of the COVID-19 pandemic, since prisoners may be forced to choose between the consequences of contracting a serious virus with access only to prison healthcare or committing a serious offense by leaving prison. This Comment presents the legal background of the necessity and duress defenses with particular emphasis on their application to prison escapes. It critiques the United States Supreme Court’s seminal decision regarding the application of these defenses to prison escapes. It also analyzes the framework under which such defenses may be raised in the context of COVID-19—both the potential problems and potential solutions. Overall, this Comment illustrates the reality of healthcare in the current prison system. With an aging population and inadequate access to healthcare and sanitation, prisoners need relief sooner rather than later, lest they be forced into the extreme option of fleeing the system altogether.
Cite as: Bill Clawges, Reexamining the Application of Duress and Necessity Defenses to Prison Escape in the Context of COVID19, 112 J. Crim. L. & Criminology Online 83 (2022).
The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.
Cite as: Regina Austin, The Saga of Reginald McFadden—“Pennsylvania’s Willie Horton” and the Commutation of Life Sentence in the Commonwealth: Part I, 112 J. Crim. L. & Criminology Online 61 (2022).
What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in Padilla and similar cases, I contend that the criminal and immigration divide is not so discrete. Inadequate representation in either criminal or immigration courts is considered a failure of the Fifth Amendment. Nevertheless, one way to rectify this constitutional shortcoming is to create and implement government-appointed counsel for all noncitizen criminal defendants facing criminal and removal proceedings. This Comment evaluates local, government-enacted immigration public defender programs that have experienced great success within California. Further, this Comment posits that to fully comply with the Fifth Amendment’s requirement of adequate representation, Congress must follow suit and expand quality legal access across the nation for noncitizens facing deportation proceedings, modeled after successful immigrant defender programs in California.
Cite as: Matthew Chang, Immigration Public Defenders: A Model for Going Beyond Adequate Representation, 112 J. Crim. L. & Criminology Online 29 (2022).
This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of threat posed by online incitement. This article clarifies the way these civil liberties interact to create the threat, suggesting that pro-democracy rights such as protections on speech and privacy should not bear all the burden of compromise for the sake of protection from terrorism.
Cite as: Francesca LaGuardia, Cannibalizing the Constitution: On Terrorism, the Second Amendment, and the Threat to Civil Liberties, 112 J. Crim. L. & Criminology Online 1 (2022).
This Essay explores the recently resolved circuit split between the Ninth, Tenth, and Eleventh Circuits regarding the proper venue for crimes committed on an airplane during flight. In 2019, the Ninth Circuit held that the proper venue for trying an assault that happened midflight was the district over which the airplane was flying when the assault occurred. While flyover districts may seem like a surprising and inconvenient choice for venue, flyover districts are the only constitutionally proper venue for point-in-time offenses that occur on airplanes during flight. Furthermore, using current aviation tracking protocols and GPS technology, courts can pinpoint the location of a plane easily and accurately at any point during flight. The main obstacle to prosecuting criminal cases in flyover districts is not technological but human. Flight attendants lack established standards and procedures for documenting and reporting incidents as they occur, especially incidents of sexual assault. This Essay provides recommendations for standardized form recording and reporting procedures to enable courts to accurately and constitutionally prosecute crimes that occur during flight. While flyover districts may be judicially uneconomical, until Congress steps in to provide a statutory basis for prosecuting crimes outside the district in which they occurred, flyover districts remain the proper venue for crimes committed on an airplane during flight.
Cite as: Megan E. McCarthy, Where Should We Land?: Flyover Districts as Proper Venue for Crimes Committed in Air on Domestic Flights, 111 J. Crim. L. & Criminology Online 55 (2021).
Cite as: Jamila Johnson & Talia MacMath, State Courts Must Combat Mass Incarceration by Granting Broader Retroactivity to New Rules Than is Provided Under the Federal Teague v. Lane Test, 111 J. Crim. L. & Criminology Online 33 (2021).
Cite as: Matthew B. Kugler, Mariana Oliver, Jonathan Chu & Nathan R. Lee, American Law Enforcement Responses to COVID-19, 111 J. Crim. L. & Criminology Online 19 (2021).
Cite as: Karl T. Muth, Learning Facts from Fiction in Jay-Z’s 99 Problems, 111 J. Crim. L. & Criminology Online 1 (2020).
Cite as: Deandra Banks, COVID in Menard, 110 J. Crim. L. & Criminology Online 109 (2020).
Cite as: Kevin Dugar, Pandemic Thoughts While on Lock, 110 J. Crim. L. & Criminology Online 107 (2020).
Cite as: Ryan T. Cannon, Sick Deal: Injustice and Plea Bargaining During COVID-19, 110 J. Crim. L. & Criminology
Online 91 (2020).
Nationwide calls to “Defund the Police,” largely attributable to Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” school resource officer (“SRO/police”) programs. To be sure, school districts’ SRO/police programs endure as a subject of persistent scholarly and public scrutiny, particularly relating to how a school’s SRO/police presence influences the school’s student discipline reporting policies and practices. How schools report student discipline and whether the process involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The “school-to-prison pipeline” research literature features two general empirical claims. One is that public schools’ increasingly “legalized” approach toward student discipline increases the probability that students will be thrust into the criminal justice system. A second, distributional claim is that these adverse consequences disproportionately involve students of color, boys, students from low-income households, and other vulnerable student sub-groups. Results from our analyses that draw from the nation’s leading data set on public school crime and safety, supplemented by data on state-level mandatory reporting requirements and district-level per pupil spending, provide mixed support for these two claims. We find that a school’s SRO/police presence corresponds with an increased probability that the school will report student incidents to law enforcement agencies. However, we do not find support in the school-level data for the broad distributional claims. While we take no normative positions on these complex and nuanced issues, we feel empirical evidence should inform the already ongoing legal and public policy debates on the future of school SRO/police programs.
Cite as: Michael Heise & Jason P. Nance, Following Data: The “Defund the Police” Movement’s Implications for Elementary and Secondary Schools, 110 J. Crim. L. & Criminology Online 63 (2020).
Cite as: Chesa Boudin, The Opportunity in Crisis: How 2020’s Challenges Present New Opportunities for Prosecutors, 110 J. Crim. L. & Criminology Online 23 (2020).
Cite as: Thea Johnson, Crisis and Coercive Pleas, 110 J. Crim. L. & Criminology Online 1 (2020).