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Articles 1 - 30 of 72
Full-Text Articles in Entire DC Network
How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt
How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt
Nathan A Greenblatt
Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Kenworthey Bilz
Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) in criminal prosecutions. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of confessions, will no longer …
Contempt For The Rights Of Man: The Role Of Prosecutorial Misconduct In Virginia Capital Cases, Fay F. Spence
Contempt For The Rights Of Man: The Role Of Prosecutorial Misconduct In Virginia Capital Cases, Fay F. Spence
Fay F Spence
From reinstatement of the death penalty in Virginia in 1977, until January 2001, 132 Virginia defendants have been sentenced to death. Approximately 70% of the federal post-conviction proceedings in these cases allege some form of prosecutorial misconduct. This article discusses the appellate and post-conviction treatment of the prosecutorial misconduct allegations in each of these cases. Three cases were actually reversed because of misconduct. Courts recognized prosecutorial misconduct in another 14 cases, but held it to be “harmless error.” In 32 of the cases, the courts refused to address the allegations of misconduct, finding the issue to be “procedurally defaulted.” In …
Short Of The Goal: New York's Legislation To Compel Hiv Testing From Accused Sex Offenders, Joseph E. Fahey
Short Of The Goal: New York's Legislation To Compel Hiv Testing From Accused Sex Offenders, Joseph E. Fahey
Joseph E Fahey
"Short of the Goal: New York's Legislation to Compel HIV Testing from Accused Sex Offenders" examines New York's newly enacted legislation allowing for such court ordered testing upon the filing of charges and prior to conviction.Although this legislation was designed to augment and improve the existing legislation which allows it only post-conviction, it contains significant flaws which leave it short of its intended result. This article examines the legislation and its flaws.
The Grand Jury Legal Advisor: Resurrecting The Grand Jury's Shield, Thaddeus Hoffmeister
The Grand Jury Legal Advisor: Resurrecting The Grand Jury's Shield, Thaddeus Hoffmeister
Thaddeus Hoffmeister
This article begins by discussing the prosecutor’s control over the grand jury process and whether that is necessarily a good or bad thing. After determining that it is indeed harmful to the criminal justice system, the article offers a possible remedy, the grand jury legal advisor (GJLA). Currently, both the state of Hawaii and the military use the GJLA. The article concludes by demonstrating that the advantages of implementing the GJLA greatly outweigh the disadvantages. In fact, the GJLA actually benefits the prosecutor. As part of the research for this article, the author has conducted an independent survey with former …
Professional Discretion And The Use Of Restorative Justice Programs In Appropriate Domestic Violence Cases: An Effective Innovation, Jean J. Ferguson
Professional Discretion And The Use Of Restorative Justice Programs In Appropriate Domestic Violence Cases: An Effective Innovation, Jean J. Ferguson
Jean J Ferguson
Despite the frequency and consequences of domestic violence, current responses to the problem are ineffective. Scholars widely agree that institutions dedicated to addressing family violence are over-burdened and under-funded. Mandatory arrest and prosecution policies deprive police officers and prosecutors of the ability to individualize their responses to domestic violence situations in order to most effectively prevent future incidents of violence. Batterer’s treatment programs suffer from time constraints, and the limited information available on their long-term results indicates that they are often insufficient to meet the long-term needs of families. The dropout rates in these programs tend to be high. While …
Passions We Like...And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan
Passions We Like...And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan
Yvonne Zylan
This article examines an oft noted, but largely unexplored, aspect of law’s functioning: its ability to constitute social reality. Specifically, I investigate the ways in which law helps define and delimit sexuality as a set of practices, experiences, and identifications. I do so by analyzing the discursive dimensions of anti-gay hate crime laws, demonstrating that such laws produce discrete discursive objects (doctrine and argument) within a specific set of institutional practices (the juridical field), and that these objects and practices in turn legitimate certain limiting narratives, instantiating them as social knowledge and as the ground of sexed and gendered performances. …
The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Michael J.Z. Mannheimer, Katie Morgan
The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Michael J.Z. Mannheimer, Katie Morgan
Michael J.Z. Mannheimer
Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, States must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, States must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is …
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
mary k ramirez
Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing
Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …
The Institutional Logic Of Preventive Crime, Mariano-Florentino Cuellar
The Institutional Logic Of Preventive Crime, Mariano-Florentino Cuellar
Mariano-Florentino Cuellar
Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly …
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
mary k ramirez
Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing
Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …
Determinative Sentencing Laws: Understanding The Law And Ethical Concerns, Linsey L. Krauss
Determinative Sentencing Laws: Understanding The Law And Ethical Concerns, Linsey L. Krauss
Linsey L Krauss
No abstract provided.
Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven
Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven
Ken Miller
No abstract provided.
The Irresistible Force, Bruce A. Antkowiak
The Irresistible Force, Bruce A. Antkowiak
Bruce A Antkowiak
This article calls for the reformation of the doctrine that permits a legislature to assign to a defendant the burden of proving an issue in a criminal case to avoid conviction. It argues that such a doctrine violates the basic norms of the Constitution and the “jury right” that is at its core. That right includes the institution of the jury trial, the presumption of innocence and the burden on the government to prove its case beyond a reasonable doubt. It is violated by such a burden assignment just as the Apprendi line of cases holds that the shifting of …
The Dilemma Of The Criminal Defendant With A Prior Record - Lessons From The Wrongfully Convicted, John H. Blume
The Dilemma Of The Criminal Defendant With A Prior Record - Lessons From The Wrongfully Convicted, John H. Blume
Cornell Law Faculty Publications
This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might …
North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead
North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead
Tamar R Birckhead
North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …
Troubled Indictments At The Special Court For Sierra Leone: The Pleading Of Joint Criminal Enterprise And Sex-Based Crimes, Cecily E. Rose
Troubled Indictments At The Special Court For Sierra Leone: The Pleading Of Joint Criminal Enterprise And Sex-Based Crimes, Cecily E. Rose
Cecily E. Rose
This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that threaten the rights of the accused to notice of the charges against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution’s recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC Indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint …
Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman
Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman
David Rossman
Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.
The Court has used three methods to create these rules. One looks to prejudice, and …
Prosecutorial Shaming, Adam M. Gershowitz
Prosecutorial Shaming, Adam M. Gershowitz
Adam M. Gershowitz
This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.
Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman
Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman
Joanne Gottesman
Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …
Exporting Harshness: How The War On Crime Has Made The War On Terror Possible, James Forman
Exporting Harshness: How The War On Crime Has Made The War On Terror Possible, James Forman
James Forman Jr.
This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition.
It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …
Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram
Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram
Hadar Aviram
This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun
Susan W Tiefenbrun
Abstract:Gendercide and the Cultural Context of Sex Trafficking in China
By Susan Tiefenbrun and Christie Edwards
Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …
Predicting Crime, Todd Henderson
Predicting Crime, Todd Henderson
Todd Henderson
Prediction markets have been proposed for a variety of public policy purposes, but no one has considered their application in perhaps the most obvious policy area: crime. This paper proposes and examines the use of prediction markets to forecast crime rates and the impact on crime from changes to crime policy, such as resource allocation, policing strategies, sentencing, post-conviction treatment, and so on. We make several contributions to the prediction markets and crime forecasting literature.
First, we argue that prediction markets are especially useful in crime rate forecasting and criminal policy analysis, because information relevant to decision makers is voluminous, …
United States V. O’Keefe: Do The Federal Rules Of Civil Procedure Provide The Proper Framework For Managing “Data Dumping” In A Criminal Case?, David W. Degnan
United States V. O’Keefe: Do The Federal Rules Of Civil Procedure Provide The Proper Framework For Managing “Data Dumping” In A Criminal Case?, David W. Degnan
David W Degnan
In 2008, two criminal cases addressed large amounts of unintelligible documents being dumped on the unprepared defendant: United States v. O’Keefe and United States v. Graham. O’Keefe teaches that when the Rules of Criminal Procedure are silent in a criminal case, the civil discovery rules provides a thoughtful and well reasoned answer for how to handle the production of large quantities of unintelligible documents stored electronically. Graham, on the other hand, did not apply the civil rules to a comparatively similar criminal data dumping case, but that case did re-emphasize the need and the duty to manage electronic discovery before …
Reconceptualizing Competence: An Appeal, Mae C. Quinn
Reconceptualizing Competence: An Appeal, Mae C. Quinn
Mae C. Quinn
This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …
The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans
The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans
Valerie P. Hans
This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the …
Curing The Real Problem: Cleaning Up Fourth Amendment Jurisprudence By Altering Our Current Exclusionary Rule To Conform With An International Model, Lawrence J. Perrone
Curing The Real Problem: Cleaning Up Fourth Amendment Jurisprudence By Altering Our Current Exclusionary Rule To Conform With An International Model, Lawrence J. Perrone
Lawrence J Perrone
The highly controversial automatic exclusionary has been called into doubt by many, and supported by others. But it is hard to dispute that many instances where evidence is excluded for extremely technical or unforeseeable Fourth Amendment violations seem perverse to our own sense of justice. When this occurs, the public does not feel more protected, they feel unsafe. When this occurs, the public does not feel relieved, they feel uneasy. The rigid application of the American exclusionary rule has had the opposite effect of its intended design— less privacy protection for all of us. This article has three purposes. First …
Consent To Harm, Vera Bergelson
Consent To Harm, Vera Bergelson
Rutgers Law School (Newark) Faculty Papers
This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).
Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.
One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …
Restorative Justice: Sketching A New Legal Discourse, Frank D. Hill
Restorative Justice: Sketching A New Legal Discourse, Frank D. Hill
Frank D Hill
Restorative justice has emerged as an increasingly accepted approach to criminal law around the world over the last 30 years or so. Unlike the traditional theories of justice – Kantian justice and utilitarian efficiency – restorative justice focuses on the private rather than the public effects of crime. Restorativists emphasize the needs of primary stakeholders, namely victims and offenders, over the needs of society at large when considering how the criminal justice system should respond to crime. This Article argues this difference in focus is reflected in the various theories’ conceptions of human nature and subjectivity. While the traditional theories …