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Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …
Why Rape Should Be A Federal Crime, Donald A. Dripps
Why Rape Should Be A Federal Crime, Donald A. Dripps
William & Mary Law Review
Sexual assault remains at high levels despite decades of legal reforms. The recent wave of accusations against public figures signals both the persistence of the problem and a new political climate for addressing it. The Article argues that Congress should make forcible rape a federal crime, to the limits of the Commerce Clause. This would bring federal assets to the fight against rape by redirecting them from enforcement of possessory crimes. The simple statutory proposal might be accompanied by a more ambitious reorganization of the Justice Department to include a Bureau of Violent Crimes. Replies are offered to objections based …
Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton
Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton
William & Mary Law Review
This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …
Designed To Fail: The President’S Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler
Designed To Fail: The President’S Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler
William & Mary Law Review
One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting common sense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory all …
Reliance On Nonenforcement, Zachary S. Price
Reliance On Nonenforcement, Zachary S. Price
William & Mary Law Review
Can regulated parties ever rely on official assurances that the law will not apply to them? Recent marijuana and immigration nonenforcement policies have presented this question in acute form. Both policies effectively invited large numbers of legally unsophisticated people to undertake significant legal risks in reliance on formally nonbinding governmental assurances. The same question also arises across a range of civil, criminal, and administrative contexts, and it seems likely to recur in the future so long as partisan polarization and sharp disagreement over the merits of existing law persist.
This Article addresses when, if ever, constitutional due process principles may …
Criminalizing “Private” Torture, Tania Tetlow
Criminalizing “Private” Torture, Tania Tetlow
William & Mary Law Review
This Article proposes a state crime against torture by private actors as a far better way to capture the harm of serious domestic violence. Current criminal law misses the cumulative terror of domestic violence by fracturing it into individualized, misdemeanor batteries. Instead, a torture statute would punish a pattern crime— the batterer’s use of repeated violence and threats for the purpose of controlling his victim. And, for the first time, a torture statute would ban nonviolent techniques committed with the intent to cause severe pain and suffering, including psychological torture, sexual degradation, and sleep deprivation.
Because serious domestic violence routinely …
Tortured Prosecuting: Closing The Gap In Virginia's Criminal Code By Adding A Torture Statute, Christopher G. Browne
Tortured Prosecuting: Closing The Gap In Virginia's Criminal Code By Adding A Torture Statute, Christopher G. Browne
William & Mary Law Review
No abstract provided.
Corrections For Racial Disparities In Law Enforcement, Christopher L. Griffin Jr., Frank A. Sloan, Lindsey M. Eldred
Corrections For Racial Disparities In Law Enforcement, Christopher L. Griffin Jr., Frank A. Sloan, Lindsey M. Eldred
William & Mary Law Review
Much empirical analysis has documented racial disparities at the beginning and end stages of criminal cases. However, our understanding about the perpetuation of—and even corrections for—differential outcomes in the process remains less than complete. This Article provides a comprehensive examination of criminal dispositions using all DWI cases in North Carolina from 2001 to 2011, focusing on several major decision points in the process. Starting with pretrial hearings and culminating in sentencing results, we track differences in outcomes by race and gender. Before sentencing, significant gaps emerge in the severity of pretrial release conditions that disadvantage black and Hispanic defendants. Yet …
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
William & Mary Law Review
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Conflict Of The Criminal Statute Of Limitations With Lesser Offenses At Trial, Alan L. Adlestein
Conflict Of The Criminal Statute Of Limitations With Lesser Offenses At Trial, Alan L. Adlestein
William & Mary Law Review
No abstract provided.
Criminal Law: Private Rights And Public Interests In The Balance, Jack C. Basham Jr., Guy A. Sibilla
Criminal Law: Private Rights And Public Interests In The Balance, Jack C. Basham Jr., Guy A. Sibilla
William & Mary Law Review
No abstract provided.
The Statute Of Limitations In A Criminal Case: Can It Be Waived?
The Statute Of Limitations In A Criminal Case: Can It Be Waived?
William & Mary Law Review
No abstract provided.
Ignorance Of The Law: A Maxim Reexamined, Ronald A. Cass
Ignorance Of The Law: A Maxim Reexamined, Ronald A. Cass
William & Mary Law Review
No abstract provided.
The Rule Of Nonreview: A Critical Analysis Of Appellate Scrutiny Of Criminal Sentences
The Rule Of Nonreview: A Critical Analysis Of Appellate Scrutiny Of Criminal Sentences
William & Mary Law Review
No abstract provided.
Criminal Law Reform And The Law Reviews, Russel M. Coombs
Criminal Law Reform And The Law Reviews, Russel M. Coombs
William & Mary Law Review
No abstract provided.