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Articles 1 - 30 of 72
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Multiculturalism: A Challenge For Modern Criminal Justice. A Latin American Perspective, Raúl A. Carnevali
Multiculturalism: A Challenge For Modern Criminal Justice. A Latin American Perspective, Raúl A. Carnevali
Raúl A. Carnevali
Increased migratory flow has given rise to the formation of culturally heterogeneous societies, and with it the discussion of multicultural states. Specifically, what we call multiculturalism is presenting new challenges for criminal law, as certain conduct may be evaluated differently according to the cultural context of the perpetrator. In order to determine the scope of multiculturalism and exactly how criminal law should deal with the issue, it is necessary to examine the theses that address the typical problems of cultural diversity, specifically, liberalism and communitarianism. One can then understand what is meant by “culturally motivated crimes” and whether the key …
Evidence In International Criminal Trials: Lessons And Contributions From The Special Court For Sierra Leone, Patrick Matthew Hassan-Morlai
Evidence In International Criminal Trials: Lessons And Contributions From The Special Court For Sierra Leone, Patrick Matthew Hassan-Morlai
Patrick Matthew Hassan-Morlai
The general aim of this paper is to contribute to the discourse on the development of a system of international criminal justice. In so doing, this paper will pay attention to one aspect – rules of evidence – and examine its role in ensuring the rights to fair trial. The examination is limited to discussing offences relating to the jurisdiction ratione materiae of the SCSL contained in Articles 2-5 of the SCSL Statute.
Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent
Kristen Nugent
Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …
Criminal Insider Trading: Prosecution, Legislation, And Justification, Steven Brody
Criminal Insider Trading: Prosecution, Legislation, And Justification, Steven Brody
Steven Brody
Since the passage of the Securities Exchange Act of 1934, insider trading has been codified as a federal crime. For many years, however, civil cases were rare, and criminal prosecutions resulting in prison terms were nearly unheard of. Yet during the 1980’s, white collar crime—and insider trading in particular—became the subject of more public scrutiny than it had ever previously received. During this period, major developments occurred in the criminalization, prosecution, and sentencing of those who had committed securities fraud. High profile cases of inside traders like Ivan Boesky and Dennis Levine made targets of federal prosecutions household names and …
Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach, Lawton P. Cummings
Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach, Lawton P. Cummings
Lawton P Cummings
This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging “moral disengagement” in prosecutors. “Moral disengagement” refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement …
Racial Profiling In America, April J. Walker
Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker
Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker
April J. Walker
No abstract provided.
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Kenneth J. Melilli
In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …
Change Is Needed; How Latinos Are Affected By The United States Criminal Justice System, Christopher F. Bagnato
Change Is Needed; How Latinos Are Affected By The United States Criminal Justice System, Christopher F. Bagnato
Christopher F. Bagnato
Latinos have been present in this country for centuries. They slowly have been making their mark in the communities of this country, usually seen but not really heard or noticed. Yet during the past thirty years the amount of Latino immigrants has skyrocketed. Census projections indicate that Latinos will be the biggest minority population in this county in the near future. The issues with discrimination of Latinos started on the streets with phrases like, “racial profiling” and “driving while brown,” and have moved into new places like the courtroom. Latinos have had to face not only the burden of prejudice …
Adverse Inferences About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance
Dale A. Nance
For at least two centuries, Anglo-American courts have responded to a party’s evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that it is time that the use of such inferences, and invitations to draw them, be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, which have long been noted, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the …
The Law At War: Counterinsurgency Operations And The Use Of Indigenous Legal Institutions., Richard O. Morgan
The Law At War: Counterinsurgency Operations And The Use Of Indigenous Legal Institutions., Richard O. Morgan
Richard O. Morgan
Success in counterinsurgency campaigns requires the military to train, equip, and ultimately turn over responsibility for public safety to indigenous legal institutions. Nonetheless, the pursuit of military objectives through participation in indigenous legal systems presents many challenges, as pragmatic concerns of operational security and the use of intelligence as legal evidence must be reconciled with cultural differences and the weakness of indigenous legal institutions. This article argues, however, that such participation may be required under international law. Further, participation may help to legitimize counterinsurgency goals in the eyes of the local populace, and bring additional resources to military efforts. In …
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
Shelby A.D. Moore
The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
Shelby A.D. Moore
The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
Shelby A.D. Moore
The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …
Too Little, Too Late? Why President Obama’S Well-Intentioned Reforms Of The Military Commissions May Not Be Enough To Save Them, John M. Bickers
Too Little, Too Late? Why President Obama’S Well-Intentioned Reforms Of The Military Commissions May Not Be Enough To Save Them, John M. Bickers
John M. Bickers
This article argues that the Bush Administration made three critical choices that destined the commissions to failure: the relatively non-public nature of the commissions, the original possibility that they might rely on coerced testimony, and an unsettling focus on those whose offenses consisted of not being “proper” combatants. President Obama’s proposed reforms address the first issue in part, and the second completely, but the third not at all. Failure to repair fully these problems, the article suggests, will prevent meaningful use of the commissions to demonstrate to the world the deeds of al Qaeda. Without further reform, the military commissions …
Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Adam Gershowitz
Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Adam Gershowitz
Adam M. Gershowitz
Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. …
Prioritizing Justice: Combating Corporate Crime From Task Force To Top Priority, Mary K. Ramirez
Prioritizing Justice: Combating Corporate Crime From Task Force To Top Priority, Mary K. Ramirez
mary k ramirez
Inadequate law enforcement against corporate criminals appears to have created perverse incentives leading to an economic crisis – this time in the context of the subprime mortgage crisis. Prioritizing Justice proposes institutional reform at the Department of Justice in pursuing corporate crime. Presently, corporate crime is pursued nationally primarily through the DOJ Corporate Fraud Task Force and other task forces, the DOJ Criminal Division Fraud Section, and the individual U.S. Attorney’s Offices. Rather than a collection of ad hoc task forces that seek to coordinate policy among a vast array of offices and agencies, the relentless waves of corporate criminality …
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Kenneth J. Melilli
In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …
Norm Internalization Through Trials For Violations Of International Law: Four Conditions For Success And Their Application To Trials Of Detainees At Guantanamo Bay, Vijay M. Padmanabhan
Norm Internalization Through Trials For Violations Of International Law: Four Conditions For Success And Their Application To Trials Of Detainees At Guantanamo Bay, Vijay M. Padmanabhan
Vijay M Padmanabhan
Norm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at …
Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin
Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin
Jennifer E. Laurin
Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient …
Appellate Review Of Sentences: Reconsidering Deference, Michael O'Hear
Appellate Review Of Sentences: Reconsidering Deference, Michael O'Hear
Michael O'Hear
For the past three decades, the national debate on sentencing policy has focused on the strengths and weaknesses of mandatory guidelines, with guidelines proponents arguing that unfettered judicial discretion at sentencing violates rule-of-law values. However, the number of states with mandatory guidelines, never a majority, has been declining in recent years, and even the federal system switched from mandatory to advisory guidelines in 2005. The trend away from mandatory guidelines has prompted renewed interest in the potential for appellate review of sentences to address rule-of-law concerns. But the appellate courts themselves have long resisted robust review on the ground that …
Why March To A Uniform Beat?: Adding Honesty And Proportionality To The Individualized Tunes Of Federal Sentencing, Jelani Jefferson Exum
Why March To A Uniform Beat?: Adding Honesty And Proportionality To The Individualized Tunes Of Federal Sentencing, Jelani Jefferson Exum
Jelani Jefferson Exum
The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker , and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, …
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli
Kenneth J. Melilli
In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Chris Jenks
On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Frank O. Bowman III
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Chris Jenks
On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …
Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew
Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew
Marla S. Carew
"Discretion and Deterrence in Tax Sentencing after Rita, Gall and Kimbrough - Opportunities for Alternative Sentences and Potential Abuses" is a rare, comprehensive look at the Sentencing Guidelines as applied specifically to tax (not general white collar) sentencing cases, including application through the 2009 Tomko opinion, and the public policy and legislative intent issues raised by sentencing criminal tax defendants in the early 21st Century.
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore
Shelby A.D. Moore
Abstract The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate …
Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew
Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew
Marla S. Carew
The Supreme Court's opinions regarding the Sentencing Guidelines, availability of judicial discretion in sentencing, and the goals of specific and general deterrence have changed the landscape of criminal tax sentencing since Booker, Rita, Gall and Kimbrough.
From National Human Rights Action Plan 2009-2010 To Read Chinese Government’S Attitude Toward The New Criminal Procedure Reform, Bo Zong
bo zong
On April 13, 2009, China issued National Human Rights Action Plan 2009-2010 for the first time, which reflected Chinese government’s attitude toward the new criminal procedure reform. This plan brought some procedural rights of criminal procedure into human rights scope, emphasizing the importance of procedural justice in criminal procedure, and this plan paid more attention to the concept foundation of criminal procedure reform, making special human rights education plan. Moreover, this plan showed that China respected the obligation of international treaties. Those new movements will undoubtedly promote criminal procedure reform in China. However, it’s more important to start coordinating different …