Digital Commons Network^™

Police Processes And Human Rights:An Indian Criminal Procedure Analysis, Abhishek Bharti

Abhishek Bharti

Across the world there is a revamping of institutions of Government in the light of the well–recognized human rights standards. Human Rights are inherent in a person by virtue of his/her being a human. They comprise both civil and political rights as well as economic, social and cultural rights. Criminal justice as a vital institution is also reoriented in the same spirit. However, there are problems of human rights violations by criminal justice agencies. Thus, the operational styles of the public institutions should be geared to respond to the needs of the good governance and that is assured by the …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest form. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Habitations Of Cruelty: Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Clemency In Capital Cases In California, Mary-Beth Moylan, Linda Carter

Mary-Beth Moylan

This article is an outgrowth of a report prepared at the request of the California Commission on the Fair Administration of Justice. We undertook a study of clemency in capital cases throughout the years of California’s use of the death penalty. Our goal was to provide the Commission with as much information as possible about the procedures and reasons for granting or denying clemency in capital cases. In addition to researching documentary materials, we also interviewed many individuals who have been involved in one capacity or another in capital clemency proceedings.

The article provides a brief overview of the meaning …

The Right To A Fair Mistrial: A Criticism Of The Procedures At The International Criminal Tribunal For The Former Yugoslavia, Kelly Isel Robreno

Kelly Isel Robreno

My note highlights the systematic procedural wrongs that persist at the International Criminal Tribunal for the Former Yugoslavia. The background begins with a discussion of the model for the tribunal, Nuremberg. It then reviews the turmoil that dominated the Balkan region and demonstrates the reasons that the U.N. was prompted to create the tribunal. The analysis pays close attention to the language that authorized the tribunal in comparison to the Nuremberg Charter. This section also presents several case studies from the region highlighting many of the systematic and procedural flaws that perpetuate so long after its founding (now almost 15 …

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

No abstract provided.

Columbine: A Lesson In Pragmatism: What's Being Done To Prevent School Violence And How It Can Be Done Better, Erin E. Schiffleger

Erin E. Schiffleger

No abstract provided.

Evidence-Based Practice To Reduce Recidivism: Implications For State Judiciaries, Roger K. Warren

Roger K Warren

No abstract provided.

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Story Thompson

Mikah K. Story Thompson

This article takes a fresh look at why individuals remain silent in the face of accusations by law enforcement. Traditionally, many courts have found that a defendant’s failure to protest her innocence reflects one of three things: (1) that the defendant has manifested her assent to the accusation by not responding; (2) that the defendant’s silence is a prior statement inconsistent with any testimony proclaiming innocence at trial; or (3) that the silence is substantive evidence of the defendant’s guilt. This article posits that a defendant’s silence actually means very little. Social science research regarding the possible meanings of silence …

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

No abstract provided.

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

No abstract provided.

Not For Love Or Money: Appointing A Public Defender To Litigate A Claim Of Ineffective Assistance Involving Another Public Defender, Christopher M. Johnson

Christopher M Johnson

This article explores whether public defenders can litigate claims of ineffective assistance of counsel involving an affiliated public defender as the claim’s target. Courts in different states have reached different conclusions on that question. Some courts treat public defenders as sufficiently different from private practitioners as to justify a different conflict of interest rule, and allow such representation. Other courts disagree, and bar public defenders from litigating such a claim to the same extent that they would bar a private practitioner litigating a claim involving a partner as the claim’s target. The dispute raises important questions about the nature of …

The Unrealized Promise Of Section 1983 Method-Of-Execution Challenges, Liam J. Montgomery

Liam J Montgomery

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Barnes, David Sloss, Stephen Thaman

Katherine Barnes kbarnes@.wulaw.wustl.edu

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

The California Three Strikes Law: A Violation Of International Law And A Possible Impediment To Extradition, Anne D. Goldin

Anne D Goldin

California’s “three strikes” law may be viewed by other countries as a violation of international human rights law and must be modified in order to avoid extradition conflicts. Although the United States Supreme Court has held that the three strikes law does not violate the Eighth Amendment, as applied, the grossly disproportionate sentences imposed under the three strikes law may be viewed by other countries as a violation of the international prohibitions against arbitrary detention and cruel, inhumane or degrading treatment or punishment. Foreign recidivism laws that are not nearly as harsh as the California three strikes law have been …

Reassessing The Role Of International Criminal Law: Rebuilding National Courts Through Transnational Networks, Elena A. Baylis

Elena A Baylis

The international community has long debated its role in redressing grave atrocities like war crimes and crimes against humanity. This Article suggests that this debate has focused too much on trials in international and hybrid courts as the primary conduit for international contributions to justice in post-conflict states. It proposes that the international community should look instead to national courts as the primary venue for such trials and to transnational networks as an effective mechanism for international involvement. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into national settings; …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Retooling Law Enforcement To Investigate And Prosecute Entrenched Corruption: Key Criminal Procedure Reforms For Indonesia And Other Nations, Leslie Gielow Jacobs, Benjamin B. Wagner

Leslie Gielow Jacobs

Public corruption is THE development issue of the twenty-first century. Players in the global campaign agree that criminal law enforcement is an essential cornerstone in a comprehensive strategy to fight the entrenched public corruption that plagues so many developing countries. But while much progress has been made in amending national laws to define the necessary corruption crimes, very little legislative attention has been paid to updating the procedural tools that police and prosecutors need to succeed. In this Article, we address this critical deficiency. Using insights gained from inside the United States Department of Justice and the Attorney General’s Office …

Does The Doj's Privilege Waiver Policy Threaten The Rationales Underlying The Attorney-Client Privilege And Work Product Doctrine? A Preliminary 'No", Julie R. O'Sullivan

Julie R. O'Sullivan

In cover letter

Competency For Execution: The Implications Of A Communicative Model Of Retribution, Pamela A. Wilkins

Pamela A Wilkins

In Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842 (2007), the United States Supreme Court opined that executions of mentally incompetent inmates lack retributive value and, for that reason, violate the Eighth Amendment. To date, however, the Court has failed to articulate a theory of retribution that makes sense of the ban on executing the incompetent. Importantly, the purely desert-based view of retribution that is the focus of most of the Court’s Eighth Amendment jurisprudence cannot account for the ban. This article attempts to articulate a theory of retribution that accounts for the Eighth Amendment ban and then …

Outsourcing And Insourcing Crime: The Political Economy Of Globalized Criminal Activity, Doron Teichman, Tomer Broude

Doron Teichman

This Article presents a novel theory of the political economy surrounding the regulation of crimes that can travel across international borders. Profit-driven crime (e.g., patent and copyright infringement, money laundering, and the production of and trade in illegal narcotics) responds – much like other forms of economic activity – to local regulation, by shifting to the territorial jurisdictions in which it incurs lower expected sanctions, making it most profitable for criminals. Given this reality, the Article argues that local crime control efforts of states are designed while taking into account the policies of other states. More specifically, it points out …

Prosecutors As Punishment Theorists: Seeking Sentencing Justice, Michael A. Simons

Michael A Simons

Federal criminal law in the last 100 years has seen three distinct sentencing eras. Most surveys of these three sentencing eras have focused on the changing power of the judge: from unfettered discretion before the Sentencing Guidelines, to severely restricted discretion under the mandatory guidelines, to our current system of guided discretion under United States v. Booker. This article, however, focuses on the role of the prosecutor, which has changed dramatically over time. In the era of individualized sentencing, prosecutors typically either abdicated sentencing responsibility or made non-binding recommendations based on individualization principles. There was little reason for prosecutors to …

When It's So Hard To Relate: Can Legal Systems Mitigate The Trauma Of Victim-Offender Relationships?, Jody L. Madeira

Jody L Madeira

This article argues that, in the aftermath of violent crime, a relationship that is both negative and involuntary can form between crime victims and offenders. This relationship fetters the victim to the crime and the criminal, rendering it difficult to recover from the transgression. To illustrate how such a relationship may form and what consequences it may have for victims, this article uses the Oklahoma City bombing as a case study, documenting through the use of original interviews an involuntary relationship in which victims’ family members and survivors perceived they were tethered to Timothy McVeigh. This perceived relationship with McVeigh …

Race, Genes, And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Jonathan Kahn

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant’s DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

Law And Biology, Morris B. Hoffman

Morris B. Hoffman

Survey of the impacts of emerging evolutionary and neuroscientific insights into the foundations of law.

The Whim Of Twelve Is Cloaked In Racial Prejudice: Why Inherent Racial Discrimination In The Capital Punishment System Requires That Maryland's Legislature Enact A Fairness In Death Sentencing Act, Matthew E. Feinberg

Matthew E Feinberg

At sentencing in a capital case, “[p]eople live or die, dependent on the whim of one man or of [twelve,]” and “where responsibility is divided by twelve, it is easy to say: ‘Away with him.’" Although judges, practitioners, and academics hope for a fair and reliable penalty, since the 1970s, the prospect of racial discrimination in capital punishment has had a very real impact on the criminal justice system. Throughout the country, Caucasian and African American criminals are being treated differently in death sentencing simply because of the color of their skin. “[I]n the face of science, in the face …

The Uneven Playing Field Part Iv: The Bad Faith Request Under Youngblood, Michael P. Hilferty

Michael Hilferty

No abstract provided.

Informants In The Us A View From The Outside, Tamara Dimovska

Tamara Dimovska

Men may be without restraints upon their liberty; they may pass to and fro at pleasure: but if their steps are tracked by spies and informers, their words noted down for crimination, their associates watched as conspirators—who shall say that they are free?... This is America is what Americans say when they talk about the peculiarities that differentiate them from the rest of the world. Even though one associates secrecy and temptation with the use of the term informant, the US criminal justice candidly acknowledges the wide use of Informants…This Article shall not be construed as an attempt to change …