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Penn Law Journal: An Rx To Heal Criminal Justice

The Journal

No abstract provided.

Penn Law E-Brief (August 2014)

Penn Carey Law E-Brief

No abstract provided.

Penn Law E-Brief (July 2014)

Penn Carey Law E-Brief

No abstract provided.

Penn Law Journal: Farewell To Fitts

The Journal

No abstract provided.

Introduction To The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton

All Faculty Scholarship

The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving …

Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

All Faculty Scholarship

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …

Migrant Workers' Access To Justice At Home: Nepal, Sarah Paoletti, Eleanor Taylor-Nicholson, Bandita Sijapati, Bassina Farbenblum

All Faculty Scholarship

Nepal’s citizens engage in foreign employment at the highest per capita rate of any other country in Asia, and their remittances account for 25 percent of the country’s GDP. The Middle East is now the most popular destination for Nepalis--nearly 700,000 were working in the Middle East in 2011 on temporary labor contracts. For some Nepalis, working abroad provides much-needed household wealth. For others, their contributions to Nepal come at great personal cost. Migrant workers in the Gulf, for example, routinely report wage theft, lack of time off and unsafe and unhealthy working conditions. Some migrant workers report psychological and …

Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson

All Faculty Scholarship

The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of …

Collateral Compliance, Joshua D. Blank

University of Pennsylvania Law Review

No abstract provided.

A Systems Approach To Error Reduction In Criminal Justice, John Hollway

All Faculty Scholarship

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future …

Putting Plea Bargaining On The Record, Joel Mallord

University of Pennsylvania Law Review

No abstract provided.

Punitive Injunctions, Nirej S. Sekhon

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Karen Oehme, Nat Stern

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Why Have No High-Level Executives Been Prosecuted?, Jed S. Rakoff

The Regulatory Review in Depth

No abstract provided.

Developments In The Right To Defence For Juvenile Offenders Since Vietnam’S Ratification Of The Convention On The Rights Of The Child, Thi Thanh Nga Pham

East Asia Law Review

This article examines Vietnam’s legal changes and law enforcement practices in regards to the right to defence of juvenile offenders since Vietnam ratified the United Nations Convention on the Rights of the Child in 1990. A combination of research methods is employed, including document analysis, statistical analysis, and selected case studies. The findings of the research indicate that Vietnam has demonstrated considerable improvement in acknowledging the right to defence of juvenile offenders in its law. The contemporary Vietnamese regulations are similar to the CRC’s requirements about legal assistance for juvenile offenders. The implementation of the law, however, confronts difficulties as …

The Crime Of Engaging In Prostitution With An Underage Girl In Chinese Criminal Law, Xiaosong Duan

East Asia Law Review

No abstract provided.

The Church Of Originalism, S. L. Whitesell

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Disappearing Together? American Federalism And Social Contract Theory, Jaren Wilkerson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Revisiting The Manson Test: Social Science As A Source Of Constitutional Interpretation, Benjamin Wiener

University of Pennsylvania Journal of Constitutional Law

Throughout the late 1960s and early 1970s, the Supreme Court defined the Due Process limitations on the admissibility of eyewitness identifications. The Court ultimately settled on a test in Manson v. Brathwaite. Since 1977, the Court’s test has been roundly criticized in the legal7 and social science8 literature. Despite developments in social science that have augmented our understanding of eyewitness identifications, the Supreme Court has failed to readdress the issue.

This Comment considers whether or not the United States Supreme Court should use social science evidence as a source for reinterpreting the Due Process Clause as expressed through the …

I Am A Camera: Scrutinizing The Assumption That Cameras In The Courtroom Furnish Public Value By Operating As A Proxy For The Public, Cristina Carmody Tilley

University of Pennsylvania Journal of Constitutional Law

The United States Supreme Court has held that the public has a constitutional right of access to criminal trials and other proceedings, in large part because attendance at these events furnishes a number of public values. The Court has suggested that the press operates as a proxy for the public in vindicating this open court guarantee. That is, the Court has implied that any value that results from general public attendance at trials is replicated when members of the media at-tend and report on trials using the same means of perception as other members of the public.

The concept of …

The New Drug Detoxification System In China: A Misused Tool For Drug Rehabilitation, Enshen Li

East Asia Law Review

Since 2008, China has established a new drug detoxification system to supersede the old mechanism that relied on administrative custodial measures for drug treatment. The new system introduces a three-tiered mechanism of voluntary, community and coercive drug detoxification, which aims at the physical, psychological and social aspects of drug-dependence treatment of addicts. However, although the new drug detoxification system seems to serve as a scientific and human-centered drug treatment tool, its practices appear to be rather different from the official rationales. Through three case studies in Guangzhou, Shanghai and Kunming, this article focuses on the legal deficiencies, theoretical inconsistencies and …

International Criminal Law For Retributivists, Alexander K. A. Greenawalt

University of Pennsylvania Journal of International Law

No abstract provided.

Commentary: Reflections On Remorse, Stephen J. Morse

All Faculty Scholarship

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

All Faculty Scholarship

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson

All Faculty Scholarship

This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …

Cultural Collisions And The Limits Of The Affordable Care Act, Jasmine E. Harris

All Faculty Scholarship

National Federation of Independent Business v. Sebelius (“NFIB”) settled the central constitutional questions impeding the rollout of the Patient Protection and Affordable Care Act (“ACA”): whether the federal government’s “individual mandate” to purchase or hold health insurance and the federal government’s authority to retract existing federal dollars if states fail to expand Medicaid eligibility violate the Constitution. However, a number of residual questions persist in its wake. While most of the focus this year has been on related constitutional issues — such as religious exemptions from offering contraceptive coverage to employees — NFIB also clears the path for a discussion …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

All Faculty Scholarship

President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …

Preventive Justice And The Presumption Of Innocence, Kimberly Kessler Ferzan

All Faculty Scholarship

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence.

After sketching out a substantive justification for a civil, preventive …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas

All Faculty Scholarship

No abstract provided.