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Volume 113


The Neuroscience of Trauma Supports Diminished Capacity as a Nuanced Approach to the ICC Case of an Ex-Child Soldier

Hiromoto, Lee,Siddiqui, Ramail,Sparr, Landy F. | June 7, 2023

The 2021 conviction of former child soldier Dominic Ongwen by the International Criminal Court (ICC) for war crimes committed as an adult commander in the Lord’s Resistance Army in Uganda raises questions about the ICC’s approach to mental illness.  During his trial, the defendant unsuccessfully raised defenses of insanity and duress, based on his kidnapping into the militant group as a child.  The court rejected not only those defenses, but also the claim that he had mental illness at all, in spite of his traumatic childhood.  Integrating scientific research, we argue that both the ICC and the defense failed to address the neuroscience of trauma.  But even if this evidence had been presented, the ICC’s all-or-nothing approach to mental illness would still leave outwardly functional trauma survivors in legal limbo.  On the one hand, such survivors may be too functional for the insanity defense.  At the same time, their activated fight-or-flight responses may cause them to perceive and react to threats in ways that the duress defense would not excuse as reasonable.  We propose that sentence mitigation based on diminished mental capacity provides a just and nuanced approach to the dilemma of a trauma victim turned perpetrator.

Reproductive Crimes

Golemon, Hayden | June 7, 2023

For centuries, American criminal law has operated with little to no reference to reproductive rights—a person’s right to decide if, when, how, and with whom to reproduce. Criminal law today only recognizes the violation of this right in one circumstance: during the sexual assault of a woman that results in a pregnancy. This lack of sensitivity to reproductive rights yields unjust results between cases of sexual assault as well as in situations where only reproductive (but not sexual) rights are violated, such as withholding birth control after consensual sex. By implementing statutes that justly account for the respective burdens of forced reproduction, states can provide more justice to victims of reproductive coercion and sexual assault. Part I of this Comment provides background on the types, ubiquity, and effects of reproductive autonomy and reproductive coercion in America. Part II examines to what extent the scope of sexual assault laws covers reproductive rights and to what extent reproductive freedoms are absent in criminal law. Part III draws on America’s legal history to explain how the scant reproductive rights present in criminal law came to be as well as their absence elsewhere. Part IV proposes the existence of standalone reproductive crimes and examines their potential application to forms of reproductive coercion, sexual assault, and questions of sexual/reproductive consent that states have struggled to answer.

The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools

Wainstein, Elizabeth E. | April 18, 2023

States across the country have increasingly adopted statistical risk assessment tools in multiple stages of their criminal legal systems with the hope of reducing incarceration without increasing crime. These tools use various characteristics to estimate an individual’s future risk of recidivism, and judges consider the results of these assessments when determining levels of custody or community supervision for convicted individuals. Despite much debate amongst academics and activists on the utility and fairness of these tools, one critique seems beyond debate: the tools are built for men, not women. These tools are based on criteria, statistics, and theory drawn from the experiences of men and thereby result in inaccurate and inequitable sentencing when applied to women. When women are sentenced according to the higher rates of violence and recidivism that are associated with men, they are often incarcerated or under supervision longer than justified by their gender-specific risk to society. The unfairness of these assessments is specifically concerning when one considers that, as of 2019, 1.2 million women in the United States were under the supervision of the criminal legal system, with approximately fifty-eight percent of them leaving at least one minor child at home without a mother’s care and guidance. Separate risk assessment tools for men and women can combat the inaccurate sentencing of women. While many commentators have argued for separate tools for men and women, they have not sufficiently addressed how such an approach would survive legal, theoretical, and policy hurdles. This Comment argues (1) that gender-specific assessments could survive an equal protection challenge; (2) that such assessments for women should be implemented despite the need for further research and work on the conflation of sex and gender and the utilization of a gender binary in the United States criminal legal system; and (3) that they could be adapted for women defendants without opening the floodgates to a demand for assessments designed for every conceivable category of criminal defendant.

Not All Evidence is the Same: Habeas Corpus and Actual Innocence. A Practically Unusable Exception for Fundamental Miscarriages of Justice?

Olexa, Samantha C. | April 18, 2023

For many, being convicted of a crime they did not commit would be a living and breathing nightmare. However, for some American prisoners, that nightmare is an unfortunate reality. Although reform focused on how an innocent individual came to be wrongfully convicted—via prosecutorial inaccuracies, forensic and eyewitness errors, jailhouse informants, forced confessions and inadequate representation—and how to prevent it in the future has seen success in recent years, the American legal system continues to fail those currently incarcerated trying to prove their innocence. When seeking habeas relief, the utmost hurdle in proving actual innocence is what type of “new” evidence should be used in order for the actual innocence gateway exception to apply. Defining what constitutes “new” evidence in this context has caused a significant split, causing circuits to apply either a newly presented or newly discovered standard. However, implementing yet another barrier to actual innocence claims under the newly discovered view directly contradicts the intended purpose of the innocence gateway and thus, this Article explores and promotes unilateral application of the newly presented standard.

White-Collar Crime, Sentencing Gender Disparities Post-Booker, and Implications for Criminal Sentencing

Turner, Sarah | April 18, 2023

“White-collar crime” is an amorphous term that has yet to be conclusively defined since its first use in 1939. This category of criminal activity results in what can be characterized as either economic harm or an impediment to the government’s ability to run successfully while minimizing conflicts of interest. Sentencing of white-collar crimes came into question in the late twentieth century due to a perception that white-collar offenders were receiving much lower sentences than offenders committing more traditional crimes. Additionally, the relationship between sentencing outcomes and status characteristics like race, age, citizen status, and gender were cause for concern. Different outcomes based on demographic differences were a significant part of the impetus for sentencing reform. To address these disparities, the United States Sentencing Commission (USSC) promulgated the United States Sentencing Guidelines (Guidelines) in 1987. The purpose of the Guidelines was to provide a comprehensive, uniform sentencing scheme that would minimize nationwide sentencing disparities. Although called “Guidelines,” these pre-determined sentencing ranges were mandatory until 2005, when the Supreme Court deemed them merely advisory in United States v. Booker. The resumption of judicial discretion has potentially opened the door to new trends in sentencing disparities. This Comment will focus on analyzing the data provided by the USSC to determine if there has been a gender-based disparity in sentencing since 2005, and, if so, why. Historically, when criminally convicted, women have been sentenced much more leniently than men. The rise of women in corporate management positions seems to lend itself to the idea that there should be a rising number of women participating in and being sentenced for white-collar crimes. This Comment will investigate if this has been the case and will attempt to explain the results from nationwide data.