Showing papers in "Journal of Criminal Law & Criminology in 2008"

Of Vice and Men: A New Approach to Eradicating Sex Trafficking by Reducing Male Demand through Educational Programs and Abolitionist Legislation

Abstract: In the last few decades, trafficking in humans for the purpose of sexual exploitation has exploded into a sophisticated industry that generates billions of dollars in profit every year yet devastates the lives of millions of innocent victims Many of the trafficked victims are impoverished girls and young women from economically depressed countries who are forced to work as prostitutes under brutal conditions in a foreign country To date, most of the scholarly, legislative, and law enforcement attention has focused on the "supply" side of the sex trafficking equation, namely the traffickers and the victims This Comment focuses on the "demand" side of the problem, namely the male clients of the prostitutes The Comment first explains how the male demand for commercial sexual services sustains and grows the sex trafficking industry, and then examines various demand-side educational programs and legislative approaches and assesses their impact on minimizing and eradicating the demand The Comment concludes by suggesting a comprehensive, demand-oriented approach to fighting sex trafficking Keywords: Human trafficking

State policy as an element of international crimes

Abstract: Recent case law of the international criminal tribunals has tended to focus oil the individual mental element of offenders, anti dismissed any relevance for State policy as a component of the analysis. It is posited that tin individual deviant, acting alone, can commit genocide or crimes against humanity, to the extent that he or she aspires to destroy all ethnic group or to persecute civilians in a widespread or systematic manner. This has led to a distortion in the law, partially explained by a focus on low-level perpetrators in early trials of the International Criminal Tribunal for the former Yugoslavia, but also by mistaken analysis of previous authority. This Article argues for revival of state policy as an element of such crimes.

Police, Politics, and Culture in a Deeply Divided Society

Abstract: This Article deals with minorities' perceptions of the police in 'deeply divided societies.' These societies are generally characterized by political disagreements, and the literature shows that most researchers emphasize the centrality of the political variable in order to understand police-minority interactions. This Article acknowledges the centrality of the political variable and adds a cultural variable that may improve the understanding of police-minority relations in a deeply divided society. In some societies, the disparity in the perceptions of majority and minority groups cannot be attributed solely to the political variable, but also to cultural differences. This is especially prominent in the case of native or immigrant minorities. Hence, it is reasonable to expect that this cultural pluralism will be reflected in minorities interaction with and its perception of the police. Findings from a survey conducted in Israel indicate that political disagreements between Jews and Arabs have negatively affected the Arab minority's perceptions of the police. This Article also shows that the Arab minority group is not homogenous in regard to their relationship with the police; there are significant political and cultural differences among Arab sub-groups (Muslim, Christian, and Druze). The Druze hold similar political orientations to the Jewish majority, and consequently their perceptions of the police were found to be more positive than those of Muslim Arabs. Nevertheless, both Druze and Muslim Arabs expressed restricted receptivity to contact with the police when police practices threatened their community cultural codes. The findings from this research call for both a deeper analysis of the relationships between minority groups and the police, and for a more attentive probe of the distinctions among minority groups.

The Crime of Complicity in Genocide: How the International Criminal Tribunals for Rwanda and Yugoslavia Got It Wrong, and Why It Matters

Abstract: Jurists at the International Criminal Tribunals for Yugoslavia and Rwanda have erroneously determined that 'complicity in genocide' is identical to 'aiding and abetting' genocide. Accordingly. they theorize that complicity in genocide is not a crime itself, but merely a misplaced and superfluous liability provision for the crime of genocide. In reality, the two crimes are distinct and designed to capture very different perpetrators. One guilty of aiding and abetting genocide had as his very purpose the facilitation of the commission of genocide. A perpetrator of the crime of complicity in genocide, in contrast, may not have had genocide as his purpose. Instead, genocide may merely have been the foreseeable result of his actions. As such, one found guilty of aiding and abetting genocide must have the heightened, and difficult to establish, mens rea of the genocidaire–-what I term the 'specific intent specific motive nexus.' By comparison, one guilty of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea such as malice or what I term the 'specific intent without specific motive,' should suffice to attach guilt. Failure to appreciate this difference creates a gaping loophole in international criminal law, providing unwarranted sanctuary to those who enable genocide.

The politics of policing: ensuring stakeholder collaboration in the federal reform of local law enforcement agencies

Abstract: Title 42 U.S.C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom the reforms may adversely impact. The exclusion of these groups is not only inconsistent with general norms of democratic inclusion, but it is also inconsistent with the paradigm of community policing that emphasizes the benefits of police-community partnerships. Ultimately, exclusion of these stake holders undermines the legitimacy of the reforms, thereby threatening the implementation and permanence of the reforms. This Article advocates that in order to ensure broader stakeholder participation in the context of DOJ's enforcement of § 14141, DOJ should formally adopt the paradigm of regulatory negotiation, a process that has been used successfully in administrative rulemaking. Applying the regulatory negotiation model to police reform has important implications such as greater cooperation among those implementing the reforms and the creation of innovative solutions to address police misconduct that are specifically tailored to the respective community.

State Intentions and the Law of Punishment

Abstract: Forget dogs. Do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes's classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy conflicting accounts of the significance of intentions to the legal or of moral permissibility of acts. Many of the constitutional theorists' arguments in favor of motive analysis have little applicability in the Context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

Nigger: A Critical Race Realist Analysis of the N-Word within Hate Crimes Law

Abstract: On a 2005 summer morning in New York, Nicholas 'Fat Nick' Minucci, who is White, beat Glenn Moore, who is Black, with a baseball bat and robbed him. During the assault, Minucci repeatedly screamed the N-word. At trial, Minucci's attorney argued that he had not committed a hate crime. The essence of the defense's argument was that Minucci's use of the N-word while assaulting and robbing Moore was not indicative of any bias or prejudice. The defense went on to indicate that Minucci had Black friends, was immersed in Black culture, and employed the N-word as part of his everyday vocabulary. Two Black men-Gary Jenkins (a hip-hop music producer) anti Randall Kennedy (a Harvard Law professor)testified that the N-word is not necessarily a racial epithet. In this Article, we systematically analyze this assessment of the N-word within hate crimes law. We employ a Critical Race Realist methodology toward this end. In doing so, we (1) systematically analyze Black and White usage of the N-word within popular culture-i.e., comedy, rap music, and spoken word entertainment and (2) reconcile these findings with research on implicit (subconscious) racial bias. In sum, we argue that whereas the N-Word is used by Blacks in a more race neutral manner within popular culture, its usage among Whites immersed in Black culture is nil. Furthermore, we find that many Whites harbor implicit anti-Black biases, and such biases predict racial hostility and the use of racial epithets. Consequently, within the realm of hate crimes law, courts should presume racial animus where a White person uses the N-word while committing a crime against a Black person. Furthermore, despite high rates of Black usage of the N-word and high rates of implicit anti-Black biases among Blacks, a law of intra-racial hate crimes among Blacks predicated upon their usage of the N-word would be fruitless. This is because the N-word has a different connotation when used intra-racially among Blacks than when directed at Blacks by Whites.

Pedophiles in Wonderland: Censoring the Sinful in Cyberspace

Abstract: The primary allure of virtual worlds, and no doubt a large part of their success, derives from the anonymity they afford their denizens. In the real world, people often tailor their behavior according to what they perceive as their society's norms of what is appropriate for people of their age, appearance, job, social skills, or social status. The physical remove of virtual worlds inspires people to speak and move about freely, uninhibited by a fear of real-world repercussions. Recent developments at the intersection of cyberspace and terrestrial law, however, suggest that not all actions in virtual worlds are consequence-free. This Comment analyzes the widely publicized issue of age-play in virtual worlds, and discusses the merits of past and present regulations criminalizing such behavior. Congress has made numerous attempts to prevent the possession and distribution of sexually explicit renderings of minors which involved no actual minors in their production. This Comment points out the logical and constitutional problems with Congress's e fort to render this victimless activity criminal under both child pornography law and obscenity, law, and concludes that so Jar as online age-play is concerned, adults should be allowed to explore their fantasies with other consenting adults without the interference of terrestrial law.

Free to Leave - An Empirical Look at the Fourth Amendment's Seizure Standard

Abstract: Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This paper presents the first empirical study of whether people actually would feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this paper concludes that people would not feel free to end their encounters with the police. By the Court’s standard, respondents would be seized in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.

Grassroots death sentences? The social movement for capital child rape laws

Abstract: Despite the Supreme Court's 1977 ruling in Coker v. Georgia declaring use of the death penalty for rape unconstitutional, there has been a recent explosion of state statutes making the death penalty available for the rape of a child. Numerous articles have tried to discern whether using the death penalty for child rape comports with the Coker holding often reaching divergent conclusions-but none has focused first on the socio-political setting that brought about these laws to inform their constitutional analysis. This Article attempts to begin contextualizing capital child rape statutes within a social movements framework. I argue that capital child rape statutes can be attributed to three movements: the popular movement to shame, fear, and isolate sex offenders; the feminist movement for harsher punishment of sexual and intra-familial violence; and the legal and political movement to punish attacks against vulnerable victims with death. Understanding these statutes in a richer way helps shed light on their potential constitutional problems.

The Grand Jury Legal Advisor: Resurrecting the Grand Jury's Shield

Abstract: This Article advocates for the creation of a Grand Jury Legal Advisor (GJLA) to resurrect the historical autonomy of grand juries. The Article draws upon Hawaii's experiences with the GJLA, and incorporates survey responses from a representative sample of former GJLAs. The Article begins with a general and historical overview of the grand jury process. This portion of the Article demonstrates how all three branches of government have contributed to the diminishment of the powers of grand jurors. Part IV of this Article discusses the important policy rationales underlying the need for grand jury autonomy; Part V recommends the implementation of a GJLA to re-establish that independence. Finally, Part VI reviews the potential advantages and disadvantages of employing GJLAs, including possible benefits to federal prosecutors. This Article concludes that the GJLA strengthens the traditional role of the grand jury as a shield against unwarranted government accusations while still permitting grand jurors, prosecutors, and witnesses to perform their long-established functions. Moreover, the Article asserts that incorporating the GJLA, which has seen considerable success in both Hawaii and the military, throughout the federal court system would allay fears that the grand jury is merely a tool of the prosecutor. Finally, contrary to the false assumptions of some observers, the GJLA could potentially aid federal prosecutors without unduly slowing the indictment process.

Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court

Abstract: This Article addresses the evolution of the International Criminal Court's case regarding Darfur, Sudan. In particular, the Article examines the U.N. investigation into the human rights abuses in Darfur, the U.N. referral of the Darfur case to the ICC, the ICC's Prosecutor own investigation into the abuses, and the recent issuance of arrest warrants by the ICC for particular Darfur suspects. In addition, the Article analyzes whether the ICC complementarity principle is violated in the Sudan case as a result of local judicial activity against the ICC suspects named in the warrants. Concluding that the principle is not violated, and the ICC may therefore proceed with its case against these suspects, the Article then proposes an integrated approach to resolving the crisis in Darfur. This approach entails ICC prosecutions, Sudanese prosecutions and a truth commission process. Finally, the Article offers suggestions for executing the ICC at-rest warranty in the Sudan.

Rethinking the Increased Focus on Penal Measures in Immigration Law as Reflected in the Expansion of the Aggravated Felony Concept

Abstract: This Comment discusses how the Immigration Acts of 1996 have focused on poor predictors of character and how they have created inconsistency in immigration law, increased litigation, and heightened incentives for illegality and dishonesty. First, the Comment discusses the current state of the criminal provisions present in immigration law. Then, it analyzes the primary anti-immigration arguments that motivated these laws. The Comment goes on to argue that the mainstream perception that there is a link between increased immigration and increased crime is unsupported by statistical data, and that in fact, the Immigration Acts of 1996 have resulted in increased illegality and criminality in the immigration context. Finally, it will advocate that refocusing on rehabilitation in immigration law will better achieve the goals of preventing illegality and criminal behavior in immigration, and that rehabilitation is a better predictor of character. The goal of this Comment is to identify methods for reforming immigration law by first recognizing the inequity and inefficiencies of the current system.

Pretrial and preventive detention of suspected terrorists: options and constraints under international law

Abstract: This article analyzes the grounds, procedures and conditions required by International Human Rights Law, and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, and for their preventive detention for security and intelligence purposes. Recognizing the difficulties in securing sufficient admissible evidence to prosecute terrorists within the tight time limits imposed by international law, the Article nonetheless suggests that indefinite detention, solely or primarily for purposes of intelligence interrogation, is probably not lawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, provided that it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory or disproportionate; is publicly registered and subject to fair and effective judicial review; and that the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, even with these safeguards, preventive detention for security purposes is generally not permitted, unless a State in time of national emergency,formally derogates from its obligation to respect the right to liberty under the European Convention on Human Rights. The Article concludes that if preventive detention of suspected terrorists for security purposes is to be allowed at all, its inherent danger to liberty must be appreciated, its use kept to an absolute minimum, and the European model should be followed, that is, such detention should be permitted only by formal derogation in time of national emergency, and then only to the extent and for the time strictly required.

From incitement to indictment? Prosecuting Iran's president for advocating Israel's destruction and piecing together incitement law's emerging analytical framework

Abstract: On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's president, Mahmoud Ahmadinejad, called for Israel to 'be wiped off the face of the map' – the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Leon Mugesera matter. Using this framework, this Article demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation, and agree to take the case. Given incitement law's track record to date, with prosecutions occurring only post-genocide, the odds against such a prosecution are long. As a result, the Article proposes that incitement law shift its focus from punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. This Article also suggests that euphemisms employed to disguise incitement, such as 'predictions' of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.

The Felony Murder Rule in Illinois: The Injustice of the Proximate Cause Theory Explored via Research in Cognitive Psychology

Abstract: The felony murder rule has long been the subject of intense criticism by the legal scholar community Illinois abides by the proximate cause theory of the felony murder rule The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a felony This includes deaths of innocent bystanders caused by third parties, and even, as in two recently decided Illinois Supreme Court cases, the deaths of co-felons at the hands of police officers Illinois courts have justified using proximate cause, a concept borrowed from tort law, on the grounds that the foreseeability requirement would temper the innate harshness of the felony murder rule However, in practice, instead of placing a restriction on the felony murder rule, it has been applied expansively, extending liability even to those defendants whose actions appeared attenuated from their co-felon's death This Comment explores why the proximate cause theory has failed in its purported purpose to limit the felony murder rule, and employs cognitive psychology as a means to explain the rule's expansive application

An Unholy Alliance: Perceptions of Influence in Insurance Fraud Prosecutions and the Need for Real Safeguards

Abstract: This Article examines the working relationship between the insurance industry and prosecutors in the insurance fraud prosecution context. Both informal and legislatively mandated relationships are examined and funding schemes reviewed. The Article argues that specialized funding of investigators and prosecutors by industry assessment has led to perceptions of industry influence on the impartiality of the prosecutor. The Article then reviews the capacity of perceived influence to chill tort plaintiff lawyer activity. The Article concludes that the potential for conflict exists and is sufficient to warrant due process consideration. Additionally, the Article offers suggestions for potential prophylactic procedural safeguards in the course of prosecuting lawyers for their representative actions in the insurance fraud context.

Criminal Prosecution in Sheep's Clothing: The Punitive Effects of OFAC Freezing Sanctions

Abstract: The postSeptember l Ith expansions to the asset-freezing power of the Office for Foreign Assets Control (OFAC), coupled with executive branch pressure to "show results " in the financial war on terror, has caused the agency to freeze the assets of several U.S. entities and individuals with as little evidence as hearsay and newspaper articles. Not surprisingly, in at least one case the Federal Bureau of Investigation (FBI) later found that there was no direct link between the blocked entity and terrorist finance. Furthermore, the government has never successfully prosecuted a frozen individual or entity for financing terrorism. While freezing assets is intended to be a preventative measure, the effects are punitive. The sanctions indefinitely deprive an individual or an entity of property without meaningful due process and indefinitely label OFAC s target as a supporter of terrorism. To appeal OFAC s decision to freeze assets, one must contest the freeze by appealing directly to the agency, without the right to review the evidence OFAC relied upon to support its action. In every court case a d?sign?e has brought against an OFAC freezing action, the courts have consistently deferred to OFAC s decision under the umbrella of deference to agency decisions pursuant to the Administrative Procedures Act and deference to executive decisions relating to foreign policy and national security. Only strengthened congressional oversight can limit OFAC s broad powers to exercise judicial powers without due process. Congress should require that OFAC meet a clearly defined minimum evidentiary standard prior to freezing assets and impose reporting requirements to demonstrate compliance with this standard. Such oversight would help ensure that OFAC can continue to freeze assets, a necessary action to block terrorist

Hearts on their Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials

Abstract: This Comment addresses whether public displays of emotion in the form of expressive or symbolic clothing negatively impact a criminal defendant's right to a fair trial It weighs the potentially prejudicial influence of allowing expressive clothing in the courtroom against the importance of free speech and victims ' rights. This Comment also considers the powerful impact of extrinsic evidence on the psychology of juries. Ultimately, this Comment recommends that all expressive clothing be banned from criminal courtrooms. COMMENT 0091-4169/08/9803-1 147 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Copyright C1 2008 by Northwestern University, School of Law Vol. 98, No. 3 Printed in U.S.A.

The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System

Abstract: The Commonwealth of Virginia, like many other jurisdictions across the country, witnessed, during the 1990s and the current decade, a series of exonerations of persons who had been convicted and sent to prison (some to Death Row) for crimes they did not commit. Jon Gould's heartfelt and thoughtfully reasoned volume chronicles the efforts of a small group of volunteers, Gould among them, to change some of Virginia's criminal justice practices in the wake of these miscarriages of justice. The conviction and subsequent exoneration of the innocent has assuredly been the most dramatic?perhaps the most important?recurring criminal justice story of the last two decades. Through repetition, the pattern is now familiar: before or shortly following 1989 (the year of the nation's first DNA exoneration); a suspect?often brown or black, almost invariably indigent, is convicted of a rape or murder; the state's evidence is facially compelling: a confession to the police, the testimony of a jail house snitch, an eyewitness's confident identification, possibly forensic evidence that appears to link the defendant to the crime scene; but years later, after

Formal, Categorical, but Incomplete: The Need for a New Standard in Evaluating Prior Convictions under the Armed Career Criminal Act

Abstract: Legislative history indicates that the Armed Career Criminal Act (ACCA), which provides for increased sentences for offenders who have three qualifying prior convictions, was intended to be applied narrowly to the smallest possible subset of offenders qualifying as 'career criminals.' Any prior conviction must satisfy both a substantive elements requirement and a sentencing requirement. Courts have established a standard for only one of these-the substantive elements requirement. In an attempt to narrow the scope of qualifying prior convictions and ensure national uniformity of application, the Supreme Court has provided a 'formal categorical' approach to evaluating prior convictions. This test compares the substantive elements that were proven to a jury in a previous conviction to the elements of the generic offense. While this approach has resulted in greater uniformity in application of ACCA, in the two decades since its establishment, the formal categorical approach has failed to result in either the nationwide consistency or the narrowing of ACCA's scope that Congress and the courts, have intended. An equivalent test for the other requirement a prior conviction must meet-that the underlying conduct constitute a crime punishable by imprisonment for a term exceeding one year would solve many of the problems currently plaguing ACCA. This standard should discount any sentencing enhancements previously applied to prior convictions and would allow consistent evaluation of convictions at the national level, independent of variance in state law. A single, nationally-uniform source of sentencing guidelines could come from national averages of the sentence ranges currently existing in the criminal codes of most states, or from the U.S. Sentencing Guidelines Manual. This uniform approach to the sentencing requirement would allow courts to apply ACCA's requirements on a national level consistently and with a narrow scope-reducing disproportionality in sentencing, increasing the deterrent effectiveness of ACCA, and accomplishing Congress's goal of selective incapacitation of the worst, most unrehabilitative of career criminals.

Let the Punishment Fit the Crime: Should Courts Exercise the Power of Appellate Sentence Review in Cases Involving Narcotics and Other Stigmatized Crimes?

Abstract: Traditionally, appellate courts defer to criminal sentences within the statutory range established by the legislature for a particular offense. Throughout most of U.S. history, this deferral reflected the fact-finding role played by the trial judge who crafted the sentence. However, the legislature's role in determining sentence ranges requires rethinking the issue of substantive appellate sentence review. In a political climate that is "tough on crime, " legislatures continue to ramp up criminal penalties for newsworthy crimes such as narcotics violations, with the result that prison populations, and the taxpayer's bill, have skyrocketed. Appellate courts should exercise greater review powers in a democratically responsible way in order to curtail certain excessive sentences. To this end, this Comment recommends a framework to identify suitable cases for substantive sentence review. First, the appellate court should determine whether the crime has been politicized, such that the crime can be described as stigmatic. If so, the appellate court should then inquire as to whether the sentence is excessive. Under this proposal, a sentence is excessive ifit is more severe than that imposed for crimes of similar moral gravity. Finally, if a sentence is excessive, it should be judicially edited to reflect culpability, grounded by a desire to match the sentence to those imposed for morally equivalent offenses in the jurisdiction.

Rethinking Robinson v. California in the Wake of Jones v. Los Angeles: Avoiding the Demise of the Criminal Law by Attending to Punishment

Abstract: For nearly forty years, the United States Supreme Court's decision in Robinson v. California has been understood to hold merely that the Cruel and Unusual Punishments Clause of the Eighth Amendment forbids punishing status conditions and thus requires a criminal act as a precondition for imposition of the criminal sanction. However, a recent Ninth Circuit Court of Appeals case, Jones v. Los Angeles, would expand the reach of Robinson from simply embodying the actus reus requirement to also forbid as a mens rea matter the punishment of acts deemed inherent in status conditions. This article evaluates Jones and argues that extending Robinson to mens rea issues is unwise and poses a radical threat to traditional criminal law doctrine that perhaps even threatens the continued existence of the criminal law itself. This article also argues that the Jones expansion of Robinson is a consequence of the Supreme Court's misapplication of the Eighth Amendment in Robinson. Because the sanction at issue in Robinson was not in fact "punishment," but was instead an inherently unconstitutional sanction characterized here as "malishment," this article argues that Robinson should never have been decided as a cruel punishment case but instead as one manifesting arbitrary state power unconstitutional under the Due Process Clause. To reverse the movement towards constitutionalization of mens rea, this article urges the Supreme Court to rethink Robinson as a due process case thus cabining the decision to reflect only that a criminal act is a constitutional prerequisite for governmental imposition of punishment.