Law Commons^™

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state …

Revising The Model Penal Code: Keeping It Real, Gerard E. Lynch

Faculty Scholarship

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation's actual criminal codes, as adopted by the state legislatures and Congress.

Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch

Faculty Scholarship

I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have frequently been …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

Sentencing Eddie, Gerard E. Lynch

Faculty Scholarship

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

Towards A Model Penal Code, Second (Federal?): The Challenge Of The Special Part, Gerard E. Lynch

Faculty Scholarship

The Model Penal Code is among the most successful academic law reform projects ever attempted. In the first two decades after its completion in 1962, more than two-thirds of the states undertook to enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting point. The Model Penal Code was influential in a variety of different ways. First, the very notion of a systematic codification of criminal law received a dramatic boost from the Model Penal Code. Apart from the degree to which any particular state recodification resembled the Model Penal …

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Faculty Scholarship

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the …

Imagery And Adjudication In The Criminal Law: The Relationship Between Images Of Criminal Defendants And Ideologies Of Criminal Law In Southern Antebellum And Modern Appellate Decisions, Bernard Harcourt

Faculty Scholarship

Criminal law opinions often project a distinct image of the accused. Sometimes, she is cast in a sympathetic light and may appear vulnerable or impressionable: a single mother, whose husband has died, struggling to raise her two, loving children; an impoverished, nineteen-year-old African-American with a fifth-grade education, "mentally dull and 'slow to learn;'" or a defenseless "obedient servant," protecting himself from an "adversary armed with a deadly weapon." On other occasions, the defendant may appear threatening, savage or even diabolical: a cold-blooded recidivist that escapes from a prison workcrew, brutally stabs, rapes and murders a woman, and returns for a …

The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch

Faculty Scholarship

We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.

The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch

Faculty Scholarship

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.

RICO's complexity has attracted several efforts to unscramble …

Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch

Faculty Scholarship

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of …

The Metastasis Of Mail Fraud: The Continuing Story Of The Evolution Of A White-Collar Crime, John C. Coffee Jr.

Faculty Scholarship

Justice Cardozo observed that legal principles have a tendency to expand to the limits of their logic, and Judge Friendly has added the corollary that sometimes the expansionary momentum carries the principle even beyond those limits. So it has been with the recent growth in the federal mail fraud law, as courts have applied a standardized formula- known as the "intangible rights" doctrine- to a broad range of fact patterns having relatively little in common. The result has been both to extend the net of the federal criminal sanction over an extraordinarily vast terrain and to arm the federal prosecutor …

The Presumption Of Innocence In The Soviet Union, George P. Fletcher

Faculty Scholarship

The presumption of innocence is a curious item in the baggage of Western legal rhetoric. Revered today here and abroad, it has become a standard clause in international testimonials to the rights of man. Yet, at first blush, it seems conceptually anomalous and irrelevant in practice. It is hardly a presumption of fact – a distillation of common experience; statistics betray the suggestion that men indicted on criminal charges are likely to be innocent. Nor is it a legal rule masquerading as an irrebuttable presumption; it is rebuttable by proof beyond a reasonable doubt of the defendant's guilt. Further, it …