Law Commons^™

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

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 …

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

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

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.

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 …

An Inconvenient Truth: Recognizing Andrea Yates Was A Victim Of Spousal Abuse: She Killed Her Children To Save Her Life, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. However, the legal system gives considerably less attention to these latter forms of abuse. One reason for the relative neglect in the area is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. We must consider …

Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone

John P Cerone

Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? Once the individual has been deemed a subject of positive international law, the requirement of state affiliation is no longer essential to analytical coherence. The issue becomes simply whether international law should directly …

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.

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

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

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 …

Prenatal Drug Exposure: The Impetus For Overreaction By The Legal Community Or A Serious Problem Needing A Serious Solution, Janet W. Steverson

Janet W. Steverson

In 1994 this author argued for the adoption of a legislative scheme that addressed the problems of children exposed prenatally to drugs and alcohol. Under that scheme fetal abuse became a crime. However, the sentence for the crime was probation with drug treatment and no-pregnancy conditions, rather than incarceration. Although no state has enacted the proposed legislative scheme in total, a number of states have enacted bits and pieces of the scheme. No state has, however, made fetal abuse a crime.

In addition to the legislation that has been enacted since 1994, a number of other changes have occurred that …

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

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

Linsey L Krauss

No abstract provided.

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

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 …

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 …

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …

Revisiting The Crime-Fraud Exception To The Attorney-Client Privilege: A Proposal To Remedy The Disparity In Protections For Civil And Criminal Privilege Holders, Cary A. Bricker

cary a bricker

Abstract: This article surveys circuit court holdings that address the crime-fraud exception to the attorney-client privilege and analyzes the differential treatment conferred on civil versus criminal privilege-holders. The federal judiciary uniformly holds that civil litigants must be apprised of the crime fraud allegations and have the opportunity to rebut them in an adversarial hearing: to deny them these protections is a Due Process violation. In the criminal context, conversely, privilege-holders rarely learn the allegations nor have the opportunity to rebut them. However, all federal courts that have addressed the issue concur that denying these protections in a criminal case does …

The Supreme Courts: Did 9/11/2001 Accelerate Their Sanctioning The Constitutionality Of Criminalizing Suspicion?, Dannye Holley

Dannye Holley

This article evaluates if in the 6.5 years since the bombing of the World Trade Towers and the Pentagon, the nation's highest appellate courts were, on balance, more willing to acquiesce in criminalization based on only suspicion. The article seeks to accomplish this evaluation by comparing decisions of the United States and the States’ Supreme Courts in the six years before September 2001, and the six years since the terrorist attack to determine if these courts with the greatest authority to sanction the criminalization of suspicion in fact have been more willing to do just that. Such a post 9/11/2001 …

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Colin Miller

With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The “mercy rule” falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended …

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.

The Sixth Amendment's Textual Core, Sanjay K. Chhablani

Sanjay K. Chhablani

The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, broadly requires that defendants be provided seven fundamental procedural protections. Over the course of the past five decades, the scope and meaning of these critical safeguards have undergone tremendous change, with series of expansive and restrictive readings. Through this jurisprudential development, several provisions of the Sixth Amendment have been interpreted in a manner that contravenes the plain meaning of its text, rendering the Amendment far less protective of individual liberty. After developing a comprehensive historical account of the Court’s Sixth Amendment jurisprudence, this Article provides …

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

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 …

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

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

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 …