Law Commons^™

Mandatory Minimalism, Erik Luna, Paul G. Cassell

Scholarly Articles

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps …

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson

Scholarly Articles

Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

Retribution And The Experience Of Punishment., John Bronsteen

Faculty Publications & Other Works

No abstract provided.

Was Forced Marriage A Crime Against Humanity Under Customary International Law In 1975?, Allyson Justine Montgomery

War Crimes Memoranda

No abstract provided.

Customary International Law Status Of The Enumerated Crimes Of Article 5 Of The Extraordinary Chambers In The Courts Of Cambodia Law And Whether They Are Prosecutable, Andrew Bader

War Crimes Memoranda

No abstract provided.

Chapeau Elements Of Crimes Against Humanity, Crimes Against Humanity, Crimes Against Humanity And Chapeau Elements, R. Garrison Mason Jr.

War Crimes Memoranda

No abstract provided.

Accused’S Right To Document Translation..., John K. Sawyer

War Crimes Memoranda

Specifically addressing what the rights are of the accused to the translation of documents (in his or her own language and/or in the language of his or her counsel) and the concomitant obligations of the parties. Also, the issues were examined with reference to the 20 February 2009 Pre-Trial Chamber decision in Khieu Samphan’s appeal.

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

A Fall From Grace: United States V. W.R. Grace And The Need For Criminal Discovery Reform, Andrew King-Ries, Beth Brennan

Faculty Law Review Articles

This article examines several 2009 cases involving prosecutorial misconduct arising from the federal government's failure to live up to its criminal discovery obligations. The article focuses specifically on U.S. v. W.R. Grace, a Clean Air Act criminal case in Montana. The authors' analysis of Grace and other cases suggests that the absence of a clear, enforceable rule jeopardizes the government's ability to fairly prosecute its cases and supports amending Rule 16 to eliminate the gap between prosecutors' legal and ethical duties, and to require the pretrial disclosure of evidence favorable to the defendant.

The One State Solution To Teaching Criminal Law, Or Leaving The Common Law And The Mpc Behind, Chad Flanders

All Faculty Scholarship

How should criminal law be taught to first-year law students? Professors preparing their classes for the first time, and even veterans of many semesters of criminal law, find themselves facing a dilemma. On the one hand, the common law is no longer good - law in nearly every state; it has been superseded by statute. Even states that leave a large role for the common law usually have a combination of common law and statutory law or strongly limit the scope of the common law. On the other hand, there is no uniform code that actually exists as law in …

Retribution And Reform, Chad Flanders

All Faculty Scholarship

What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

Over-Kill: The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Scholarship

No abstract provided.

On Genocide, Anthony D'Amato

Faculty Working Papers

The crime of genocide is the newest international crime. It must be kept as a separate, distinct, and coherent concept. It is the first truly subjective crime; all other crime, though requiring mens rea, require only that the defendant consciously committed the criminal acts. In the case of genocide, however, the underlying criminal acts are no different from the acts required to prove ordinary crimes. The difference is one of motive. What is being punished by the crime of genocide is the selection of victims according to their involuntary membership in four kinds of groups: national, ethnical, racial, or religious. …

Capital Punishment In Illinois In The Aftermath Of The Ryan Commutations: Reforms, Economic Realities, And A New Saliency For Issues Of Cost, Leigh Buchanan Bienen

Faculty Working Papers

In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state's attorneys , and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county …

International Bridges To Justice (Ibj) - Criminal Defence Training, Lien Centre For Social Innovation

Social Space

Criminal justice systems across the world continue to be plagued by problems such as arbitrary detention, torture and an inadequate knowledge of the rights of defendants. IBJ hopes to establish a legal resource hub for criminal defenders and justice practitioners across Asia by taking a collaborative and proactive approach with Asian governments and fostering leadership and innovation in the area of criminal justice reform.

The Complementarity Conundrum: Are We Watching Evolution Or Evisceration?, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Rome Statute nowhere defines the term "complementarity, " but the plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The practice of complementarity may well be the fulcrum supporting the Court's long term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Party towards treaty accession. The Rome Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and it includes detailed procedural …

Review Of “Sisters Outside: Radical Activists Working For Women Prisoners, By Jodie Michelle Lawston”, Lisa A. Leitz

Peace Studies Faculty Articles and Research

Book review of Jodie Michelle Lawston's "Sisters Outside: Radical Activists Working for Women Prisoners".

Citizens United & Corporate & Human Crime, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …

International Decision, African Court On Human And Peoples’ Rights, Michelot Yogogombaye V. Republic Of Senegal, Charles Chernor Jalloh

Faculty Publications

State Parties have automatic access to the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania. In stark contrast, individuals and NGOs (i.e. those most likely to bring cases alleging human rights violations), can only initiate proceedings if the respondent State has entered a special declaration accepting the Court’s competence to receive such cases. Predictably, in a continent rife with human rights violations, only a few African States have accepted the Court’s jurisdiction to hear such (individual or NGO) petitions since its formal creation in June 1998. After years without hearing any cases, the Court finally received a …

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I …

Balancing Fear: Why Counter-Terror Legislation Was Blocked After The Oklahoma City And London Bombings, Gabriel Rubin

Department of Justice Studies Faculty Scholarship and Creative Works

This article scrutinizes the legislative reactions to the Oklahoma City Bombing and the 2005 London Bombings to try to decipher why counter-terror legislation was substantially blocked after these attacks. It finds that the partisan composition of the government and executive approval ratings are critical to the passage of counter-terror laws. In light of the recent slew of counter-terror legislation passed worldwide, cases, where counter-terror legislation has been blocked, have become critically important. To this end, this article asks, “Why does counter-terror legislation get blocked when it does?” To answer the question, three variables are tested: partisan composition of the government, …

Repeat Offenders: If They Learn, We Punish Them More Severely, Murat C. Mungan

Scholarly Publications

Many legal systems are designed to punish repeat offenders more severely than first time offenders. However, existing economic literature generally offers either mixed or qualified results regarding optimal punishment of repeat offenders. This paper analyzes optimal punishment schemes in a two period model, where the social planner announces possibly-different sanctions for offenders based on their detection history. When offenders learn how to evade the detection mechanism employed by the government, escalating punishments can be optimal. The contributions of this paper can be listed as follows: First, it identifies and formalizes a source which may produce a marginal effect in the …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

What Is Changing? 'The Future Is Not What It Used To Be', Michael A. Wolff

All Faculty Scholarship

The editors of the Federal Sentencing Reporter asked a number of experts on sentencing in 2008 to write short pieces on what they expected after a "change" election. In 2010 the editors asked: what changed? Judge Wolff’s response, which concentrates on the states, is that the states’ dire financial conditions and the effect of the California marijuana legalization proposition, which gathered serious support but failed, have affected the public’s perceptions of sentencing policy. The public and their representatives are trying more to be smart on crime rather than tough on crime, and the public is becoming increasingly skeptical of the …

'Fruits Of The Poisonous Tree' In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

This article gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence, and explores how these rules are interpreted when excluding the derivative “fruits” of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one’s home and confidential communications. It shows, whether a country begins with a seemingly airtight categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely triumphed over constitutional rights. As a …

A Typology Of Consensual Criminal Procedures: An Historical And Comparative Perspective On The Theory And Practice Of Avoiding The Full Trial, Stephen C. Thaman

All Faculty Scholarship

In the words of Clifford Geertz, this chapter engages in “an exercise of intercultural translation” in order to understand the reality of plea bargaining and other forms of consensual resolution of criminal cases. It provides a history of consensual and alternative forms of criminal procedure around the world. It also provides a comprehensive discussion on alternatives to a full trial in modern penal systems and issues that arise with those alternatives.