Digital Commons Network^™

Aedpa's (Imaginery) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Aedpa's (Imaginary) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

The Privatization Of Immigration Law Enforcement, Huyen T. Pham

Huyen T. Pham

In the immigration policy debate, the question of who enforces our immigration laws can be as significant as what those policies are. And on that question, a significant and startling trend in immigration law has emerged: the shifting of enforcement responsibilities once held exclusively by government officers to private parties such as employers, landlords, and public carriers. These laws obligate private parties to ensure that they provide their goods and services only to those with legal immigration status; private parties who fail to do so face civil and criminal penalties. This article maps the expansion of private enforcement laws and …

Fear And Loathing In Insanity Law: Explaining The Otherwise Inexplicable Clark V. Arizona, Susan Rozelle

Seattle University

Eric Clark believed he was battling space aliens when he shot and killed Officer Jeffrey Moritz. Charged under a first-degree murder statute that requires knowledge the victim is a police officer, Clark should have been “not guilty” two ways: first, by reason of insanity, and second, because he did not satisfy the mens rea requirement. Instead, he was found guilty, and the United States Supreme Court’s decision upholding this result tortured insanity law jurisprudence. The only plausible explanation for the Court’s decision lies in society’s emotional reaction to mental illness. Fear and loathing have displaced not only care and compassion, …

Coporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This article address a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, represented primarily by the American Bar Association, the Association of Corporate Counsel, and the National Association of Criminal Defense Lawyers, on the one side, and the United States Department of Justice, on the other. The fight is over federal prosecutors’ escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department views privilege waiver as a legitimate and very important tool in its post-Enron battle …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Mentally Ill Prisoners In The California Department Of Corrections And Rehabilitation: Strategies For Improving Treatment And Reducing Recidivism

W. David Ball

California prisons and jails treat more people with mental illness than hospitals and residential treatment centers combined. Mentally ill prisoners receive inadequate medical and psychiatric care, serve longer terms than the average inmate, and are released without adequate preparation and support for their return to society. As a result, these offenders are much more likely to violate parole and return to prison, cycling ever-downward. With the California prison healthcare system currently in receivership, and the state poised to spend more money on prisons than on colleges in the coming fiscal year, this paper addresses a topic that is both underreported …

Prosecuting Government Fraud Despite The Csi Effect: Getting The Jury To Follow The Money, James B. Johnston

James B Johnston

Prosecutors have complained that jurors who think they are educated in crime scene investigations by watching T.V. have made it difficult to prove cases even when the charge is white collar in nature because they expect the forensics the see on the show "CSI". In regard to government fraud cases, the prosecutor simply must get the jury to follow the fraud linked money. This article notes that those in law enforcement must give the jury what they want to get them to follow the money especially when the case concerns government fraud and corruption.

Magistrates’ Examinations, Police Interrogations, And Miranda—Like Warnings In The Nineteenth Century, Wesley M. Oliver

Wesley M Oliver

The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper …

Are All Forms Of Joint Crime Really "Organized Crime"?, Boaz Sangero

Prof. Boaz Sangero

It is seemingly possible to think that the new Israeli Combating Criminal Organizations Law, 2003 is a desirable statute. After all – how many struggles are more justified than the fight against organized crime? This Article will demonstrate that, in view of the extensive and comprehensive legislation already existing in Israel prior to the enactment of the new law, there was no need at all for an additional statute. Furthermore, it will show that the excessively broad definition given to the term “criminal organization” is liable to dominate Israeli criminal law and make the already draconian penal code – which …

Pinochet And The Uncertain Globalization Of Criminal Law, Robert C. Power

Robert C Power

Economics Of Plea Bargaining, Richard Adelstein

Richard Adelstein

A short summary of earlier work for a sociological audience.

Missing Miranda's Story, A Review Of Gary L. Stuart's, Miranda: The Story Of America's Right To Remain Silent, George C. Thomas Iii

George C Thomas III

Miranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart’s book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, …

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Steven L. Chanenson

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Vera Bergelson

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed. Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest …

Criminal Forfeiture Procedure In 2006: A Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This article is one in series of annual surveys of the case law regarding criminal forfeiture procedure and the adjudication of third party rights in criminal forfeiture cases. It covers the case law from 2005 through early 2006.

Obstruction Of Justice: Model Sentencing Guidelines §2j2, Steven Chanenson

Steven L. Chanenson

No abstract provided.

Drugs, Dogs And The Fourth Amendment: An Analysis Of Justice Stevens' Opinion In Illinois V. Caballes, James Johnston

James B Johnston

When a drug dealer delivers illegal narcotics to the American maret place, he frequently uses out nation's roads. In an opinion authored by Justice John Paul Stevens, the U.S. Supreme Court that is captioned Illinois v. Caballes, the Court ruloed that drug dealers do not have a reasonable expectation of privacy when delivering illegal drugs in their cars. This article agrees with the Court's ruling and argues that we as a society have a right and an obligatio n to protect ourselves from drug abuse and drug traffickers. Justice Stevens' opinionj provides a brilliant examination of judicial precedent coupled with …

An Examination Of New Jersey's Money Laundering Statutes, James B. Johnston

James B Johnston

Drug dealers, white collar criminals and organized crime groups look at New Jersey as a safe haven when conducting financial transactions with their crime linked money. Due to its proximity to New York, New Jersey has become susceptible to the money laundering industry. As a result the New Jersey legislature has passed a series of anti-money laundering provisions that provide law enforcement with powerful tools designed to take the profit out of crime and bring money launderers to justice. This article examines New Jersey's money laundering statutes and its potential contribution in bringing profit motivated criminals to justice.

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Robert C Power

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian Gallini

Brian Gallini

Gender Equality, Social Values And Provocation Law In Australia, Canada And The United States, Caroline A. Forell

Caroline A Forell

This article examines and compares the partial defense of provocation as it applies to domestic homicide in the United States, Canada and Australia.

Subsidiarity, Federalism, And Federal Prosecution Of Street Crime, John F. Stinneford

John F. Stinneford

No abstract provided.

The Next Era Of Sentencing Reform, Steven L. Chanenson

Steven L. Chanenson

Hoist With Their Own Petard?, Steven Chanenson

Steven L. Chanenson

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

Criminal Justice And Videoconferencing Technology: The Remote Defendant, Anne Poulin

Anne Poulin

This Article addresses the increasing use of videoconferencing to avoid bringing criminal defendants to court for certain proceedings. Unfortunately, courts use videoconferencing technology to bring criminal defendants to court without carefully evaluating the impact of that practice on the quality of justice. This Article evaluates the implications of using technology to have defendants appear through videoconferencing and argues against the practice. It brings to bear the literature from other fields, particularly communications and social psychology. That body of literature suggests that videoconferencing may have a negative impact on the way the defendant is perceived by those in court as well …

Implementing Nj's Anti-Terrorism Laws To Prevent Terrorist Financing: A Statutory Analysis Of The September 11, 2001 Anti-Terrorism Act, James B. Johnston

James B Johnston

The 9/11 hijackers received much of the money they used to implement their plan of murder by funnelling money sent to them by Al Qaeda opertives to banks located in NJ. As a result the NJ legislature signed off on powerful terrorist financing legislation when it passed the September 11, 2001 Anto Terrorism Act. This article provides a step by step analysis of these new statutes and discusses other state legislation that can allow law enforcement to confiscate money linked to terrorism.

Bulk Cash Smuggling And The Globalization Of Crime, Stefan D. Cassella

Stefan D Cassella

The articles discusses the legislative history of the bulk cash smuggling statute, 31 U.S.C. 5332, and constitutional issues raised under the Excessive Fines Clause of the Eighth Amendment when the government seeks to use the statute to forfeit the currency being smuggled.

The Forfeiture Of Property Involved In Money Laundering Offenses, Stefan D. Cassella

Stefan D Cassella

The article discusses in detail the legal theories that the government uses to forfeit property involved in money laundering offenses under both the civil and criminal forfeiture laws. The money laundering offenses include violations of 18 U.S.C. 1956 and 1957, as well as the anti-structuring and bulk cash smuggling statutes in Title 31.

Muting Gideon's Trumpet: Pricing The “Right To Counsel” In Minnesota Courts, Peter Erlinder

C. Peter Erlinder

No abstract provided.