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Articles 61 - 90 of 1207
Full-Text Articles in Law
Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz
Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz
Adam M. Gershowitz
Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …
Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz
Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz
Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
An Ntsb For Capital Punishment, Adam M. Gershowitz
An Ntsb For Capital Punishment, Adam M. Gershowitz
Adam M. Gershowitz
When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …
Consolidating Local Criminal Justice: Should Prosecutors Control The Jails?, Adam M. Gershowitz
Consolidating Local Criminal Justice: Should Prosecutors Control The Jails?, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz
An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz
Adam M. Gershowitz
The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500% in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America 's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …
Particularism, Telishment, And Three Strikes Laws, Michael S. Green
Particularism, Telishment, And Three Strikes Laws, Michael S. Green
Michael S. Green
No abstract provided.
Capital Murder Symposium: Policy Panel, Davison M. Douglas, Richard Dieter
Capital Murder Symposium: Policy Panel, Davison M. Douglas, Richard Dieter
Davison M. Douglas
This symposium looked at capital murder prosecutions, mainly in Virginia, from both a practice standpoint and a policy standpoint. This is the final session, the Policy Panel that addressed if and when the death penalty should be imposed..
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl
Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, …
Bargaining Inside The Black Box, Allison Orr Larsen
Bargaining Inside The Black Box, Allison Orr Larsen
Allison Orr Larsen
When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Veronica Root
Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.
The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …
The Death Penalty As Incapacitation, Marah S. Mcleod
The Death Penalty As Incapacitation, Marah S. Mcleod
Marah McLeod
Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.
How can courts and commentators …
Illegal Predicate Searches And Tainted Warrants After Heien And Strieff, Kit Kinports
Illegal Predicate Searches And Tainted Warrants After Heien And Strieff, Kit Kinports
Kit Kinports
A long-standing debate has surrounded the relationship between two features of the Fourth Amendment's exclusionary rule - the fruits of the poisonous tree doctrine and the good-faith exception - in cases where the evidence used to secure a search warrant was obtained in violation of the defendant's constitutional rights. Some judges and scholars maintain that the fruits of the poisonous tree doctrine takes precedence in such "tainted warrant" cases, leading to the suppression of any evidence seized in executing the warrant unless the warrant was supported by probable cause independent of the illegal predicate search. By contrast, others believe that …
The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports
The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports
Kit Kinports
For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.
To resolve this conflict and provide guidance to law enforcement …
Heien'S Mistake Of Law, Kit Kinports
Heien'S Mistake Of Law, Kit Kinports
Kit Kinports
The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
W. Bradley Wendel
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …
The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr
The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr
Orin Kerr
To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …
Government Intrusion Into The Attorney-Client Relationship: An Interest Analysis Of Rights And Remedies, Philip Halpern
Government Intrusion Into The Attorney-Client Relationship: An Interest Analysis Of Rights And Remedies, Philip Halpern
Philip Halpern
No abstract provided.
The Confrontation Clause And The Search For Truth In Criminal Trials, Philip Halpern
The Confrontation Clause And The Search For Truth In Criminal Trials, Philip Halpern
Philip Halpern
No abstract provided.
Interrogation Parity, Stephen Rushin, Kate Levine
Interrogation Parity, Stephen Rushin, Kate Levine
Stephen Rushin
This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create …
Would Hamsterdam Work - Drug Depenalization In The Wire And In Real Life, John Bronsteen
Would Hamsterdam Work - Drug Depenalization In The Wire And In Real Life, John Bronsteen
John Bronsteen
The television show The Wire depicts a plan called “Hamsterdam” in which police let people sell drugs in isolated places, and only those places, without fear of arrest. Based on limited but decent empirical evidence, we can make educated guesses about what would happen if that were tried in real life. Indeed, Swiss police tried something remarkably similar in the 1980s. More generally, the results of various forms of drug legalization, depenalization, and decriminalization in Europe--such as in Portugal, which has transferred the state's method of dealing with drug use (including heroin and cocaine) from the criminal justice system to …
Could A Robot Be District Attorney?, Stephen E. Henderson
Could A Robot Be District Attorney?, Stephen E. Henderson
Stephen E Henderson
No abstract provided.
Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver
Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver
Russell L. Weaver
This paper deals with the issue of "reliability" in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found "innocent" of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions …
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Luke Milligan
The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …
Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly
Peter R. Reilly
Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …
Policing, Danger Narratives, And Routine Traffic Stops, Jordan Woods
Policing, Danger Narratives, And Routine Traffic Stops, Jordan Woods
Jordan Blair Woods
Should Robots Prosecute And Defend?, Stephen E. Henderson
Should Robots Prosecute And Defend?, Stephen E. Henderson
Stephen E Henderson
Smoke But No Fire: When Innocent People Are Wrongly Convicted Of Crimes That Never Happened, Jessica S. Henry
Smoke But No Fire: When Innocent People Are Wrongly Convicted Of Crimes That Never Happened, Jessica S. Henry
Jessica S. Henry
Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful …
Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh
Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh
Jessica S. Henry
Virtual life sentences are sentences with a term of years that exceed an individual’s natural life expectancy. This exploratory study is one of the first to collect data that establish the existence, prevalence, and scope of virtual life sentences in state prisons in the United States. Initial data reveal that more than 31,000 people in 26 states are serving virtual life sentences for violent and nonviolent offenses, and suggest racial disparities in the distribution of these sentences. This study also presents potential policy implications and suggestions for future research.