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Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

A Community Of Courts: Toward A System Of International Criminal Law Enforcement, William W. Burke-White

All Faculty Scholarship

No abstract provided.

How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright

Washington and Lee Law Review

No abstract provided.

The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown

Washington and Lee Law Review

No abstract provided.

The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen

Scholarly Works

Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …

From Anastasoff To Hart To West's Federal Appendix: The Ground Shifts Under No-Citation Rules, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.

The Supreme Court Of Canada: Its History, Powers And Responsibilities, Frank Iacobucci

The Journal of Appellate Practice and Process

No abstract provided.

The Koon Trap: Why Imperfect Entrapment Fails To Justify Departure From The Federal Sentencing Guidelines, Joseph M. Meadows

Indiana Law Journal

No abstract provided.

Crossing The Line: Juvenile Transfer And Prison Violence, Jessica M. Huffman

Sociology & Criminal Justice Theses & Dissertations

The juvenile court has long held caring and rehabilitation as it's objective for those persons who commit crimes while under age 18. However, arguably, that goal has been compromised with the use of juvenile transfers. Some research has been done on the use of transfers, but little has studied the effects of incarcerating juveniles with adult prisoners at the state level. This thesis examines the use of the juvenile transfer and the effects it has with respect to prison violence using states in the U.S. as the unit of analysis. It was hypothesized that prison violence would increase with an …

Regulating Federal Prosecutors' Ethics, Bruce A. Green, Fred C. Zacharias

Vanderbilt Law Review

To what extent should federal prosecutors be regulated by states, by federal courts, or by the U.S. Department of Justice ("DOJ) as a matter of self-regulation? This Article concludes that, subject to congressional oversight, federal courts should have the ultimate authority to regulate federal prosecutors. However, it also acknowledges the legitimacy of competing claims by the states and DOJ. Sometimes, federal courts should defer to state court regulation, given traditional state regulation of the practice of law and a host of practical considerations. At other times, federal prosecutors have compelling reasons to seek freedom from both state regulation and regulation …

Federal Guilty Pleas Under Rule 11: The Unfilled Promise Of The Post-Boykin Era, Julian A. Cook

Scholarly Works

Rule 11 of the Federal Rules of Criminal Procedure governs perhaps the most essential and common practice in the federal criminal justice system--the guilty plea. Despite the public's focus on the excitement and drama engendered by real and fictional criminal trials, the overwhelming majority of criminal matters reach a negotiated resolution. Indeed, the importance of the guilty plea to the judiciary, prosecutors, and even defense attorneys cannot be overstated. Without guilty pleas, the criminal justice system would malfunction; the system is simply incapable of accommodating the constitutional exercise of a defendant's trial right in each instance.

The federal plea process …

The Duckwater Shoshone Drug Court, 1997-2000: Melding Traditional Dispute Resolution With Due Process, Ronald Eagleye Johnny

American Indian Law Review

No abstract provided.

Dear Chief Judge Schroeder, Carl W. Tobias

Law Faculty Publications

Dear Judge Schroeder: Congratulations on becoming the Chief Judge of the United States Court of Appeals for the Ninth Circuit. Judge Procter Hug, Jr., transferred that office to you on December 1, 2000, during a quiet period in the tribunal's life, affording several months of relative calm m which to assume the daunting responsibility for Ninth Circuit operations. Your twenty-one-year service as an active court member will promote the felicitous discharge of your new duties as chief judge and will ease resolution of the difficulties that the tribunal will invariably encounter.

You have entered the pantheon of leaders whose century …

A Refreshing Jury Cola: Fulfilling The Duty To Compensate Jurors Adequately, Evan R. Seamone

Journal Articles

This Article adopts a new perspective on the obligation of states to compensate jurors on the basis of their financial needs. It combs the nation’s history for answers to a variety of significant questions: Why do states compensate jurors? Have there ever been minimal levels of juror compensation among the states of the union? Have any legal challenges resulted in governments raising jury fees? Have states developed uniform standards for juror compensation in light of varied economic conditions? While, at times, the responses to these questions will be brief, answering them is crucial to understanding how jury fees can be …

A Community Of Courts: Toward A System Of International Criminal Law Enforcement, William W. Burke-White

Michigan Journal of International Law

This Article argues that, for political reasons, the future of international criminal law enforcement will largely be at the domestic level. It anticipates the emergence of a community of courts-domestic, semi-internationalized, and supranational. A decentralized system of international criminal law enforcement may give pause for concern: How can such a system be regulated? How can uniformity and effectiveness be assured? It is the claim of this Article that, in a world in which information is power, the relationships between these courts-the exchange of information, ideas, and personnel-brings order and regularity to the system. These interdependent relationships are defined by the …

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Journal Articles

Much of recent discussions of conservative judicial activism has concerned the revival of federalism-based limits on Congress during the Rehnquist Court. The allure of federalism as a topic for discussion is understandable, yet I argue that constitutional criminal procedure provides a better context within which to test the Rehnquist Court's commitment to judicial restraint. In this Essay, I examine the topic at hand against the background of the many important developments that have taken place in criminal procedure on Rehnquist's watch. The results of this examination are surprising because they suggest that activism is not necessarily the antithesis of restraint. …

Federal Courts, Overbreadth, And Vagueness: Guiding Principles For Constitution Challenges To Uninterpreted State Statutes, Mark L. Rienzi, Stuart Buck

Scholarly Articles

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

International Criminal Courts And Fair Trials: Difficulties And Prospects, Jacob Katz Cogan

Faculty Articles and Other Publications

The question "Can international criminal courts provide defendants with fair trials?" is one that has barely been posed, let alone answered. The realm of international criminal justice is distinguished from domestic criminal justice not simply because accountability and sovereignty weigh heavier in this context, but also because of the absence of an effective counterweight to check these interests. One approach to the fair trial issue focuses on the rights delineated in the tribunals' statutes, rules of procedure and evidence, and case law. A second approach to the problem of fair trials asks, instead, whether these international courts have the independence …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

A State Supreme Court In Transition, James E. Bond, Kelly Kunsch

Seattle University Law Review

This article presents a statistical snapshot of voting patterns within the Washington Supreme Court at the turn of the century and then explores how the changing makeup of the court may affect substantive areas of the law. The Washington Supreme Court is in a state of transition; following the November 2000 elections, only Justice Smith has served more than ten years on the high court. Four of the nine justices are serving their first terms. By looking at the opinions and voting records of both the remaining and departing members of the court, we can make some generalizations about the …

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

Publications

No abstract provided.

Mitigation Evidence And Capital Cases In Washington: Proposals For Change, Mary Pat Treuthart, Anne Branstad, Matthew Kite

Seattle University Law Review

Part II of this article examines the United States Supreme Court's recognition of the importance of mitigation evidence in capital cases. Part III then focuses on the role of mitigation evidence in Washington's death penalty scheme. The following section, Part IV, addresses the public policy implications when mitigation evidence is not presented. Finally, Part V proposes changes to the current sentencing procedure in Washington involving capital crimes.

Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Journal Articles

In this Article, I advance a limited defense of judicial activism by the Burger and Rehnquist Courts in constitutional criminal procedure. My basic claim is that even if the so-called "Counterrevolution" in criminal procedure is viewed as activist -- as I think much of it must be -- it nevertheless was normatively defensible as a necessary condition, in a “second-best” world, of reaching an equilibrium closer to the judicial restraint model than would be possible if activism were only a one-way ratchet. Though my thesis supplies a justification for the Burger and Rehnquist Court's basic approach to legal change, it …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

Scholarly Works

In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …

Past Violence, Future Danger?: Rethinking Diminished Capacity Departures Under Federal Sentencing Guidelines Section 5k2.13, Eva E. Subotnik

Faculty Publications

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the …

Celebrating The 200th Anniversary Of The Federal Courts Of The District Of Columbia, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

February 27, 2001 marked the 200th anniversary of the Federal Courts of the District of Columbia, the courts we know today as the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia. The history of these courts is interesting, albeit somewhat confusing; their names changed no fewer than six times since their creation. Indeed, from 1863 until 1893, the two courts were joined and called the Supreme Court of the District of Columbia. Because of their location in the nation's capital and their unusual dual jurisdiction as both …

U.S. Jury Reform: The Active Jury And The Adversarial Ideal, Valerie P. Hans

Cornell Law Faculty Publications

In many countries, lay people participate as decision makers in legal cases. Some countries include their citizens in the justice system as lay judges or jurors, who assess cases independently. The legal systems of other nations combine lay and law-trained judges who decide cases together in mixed tribunals. The International Conference on Lay Participation in the Criminal Trial in the 21st Century provided useful contrasts among different methods of incorporating lay voices into criminal justice systems worldwide. Systems with inquisitorial methods are more likely to employ mixed courts, whereas adversarial systems more often use juries. Research presented at the Conference …

The Unnecessary Alternate Juror, Mary Kaluk Lanning

University of Colorado Law Review

No abstract provided.

Justice Is Not All Or Nothing: Preserving The Integrity Of Criminal Trials Through The Statutory Abolition Of The All-Or-Nothing Doctrine, Patrick D. Pflaum

University of Colorado Law Review

No abstract provided.