Law Commons^™

Plotting Premeditation's Demise, Kimberly Kessler Ferzan

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Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.

This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts …

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

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This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

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Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Mental Disorder And Criminal Law, Stephen J. Morse

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Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal …

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

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This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker

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Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

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If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

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How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Hot Crimes: A Study In Excess, Steven P. Grossman

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Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

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A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

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This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vazquez

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On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous …

The Unsolved Mysteries Of Causation And Responsibility, Kimberly Kessler Ferzan

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This article is part of a symposium on Michael Moore's Causation and Responsibility. In Causation and Responsibility, Moore adopts a scalar approach to factual causation, with counterfactual dependency serving as an independent desert basis. Moore’s theory of causation does not include proximate causation. The problem with Moore's argument is that the problems with which proximate causation dealt - how and when to limit cause in fact - remain unresolved. In this paper, I focus on two sets of problems. The first set is the “fit” or categorization problems within the criminal law. I focus on three matches: (1) the fit …

Realism, Punishment & Reform [A Reply To Braman, Kahan, And Hoffman, "Some Realism About Punishment Naturalism”], Paul H. Robinson, Owen D. Jones, Robert O. Kurzban

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Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://.ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://.ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue. As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their …

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

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Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, …

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

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At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

Prosecutorial Regulation Versus Prosecutorial Accountability, Stephanos Bibas

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No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legislatures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individual cases. Scholars have largely neglected the most promising avenue of …

Rewarding Prosecutors For Performance, Stephanos Bibas

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Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards …

The Anti-Case Method: Herbert Wechsler And The Political History Of The Criminal Law Course, Anders Walker

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This article is the first to recover the dramatic transformation in criminal law teaching away from the case method and towards a more open-ended philosophical approach in the 1930s. It makes three contributions. One, it shows how Columbia Law Professor Herbert Wechsler revolutionized the teaching of criminal law by de-emphasizing cases and including a variety of non-case related material in his 1940 text Criminal Law and Its Administration. Two, it reveals that at least part of Wechsler's intention behind transforming criminal law teaching was to undermine Langdell's case method, which he blamed for producing a "closed-system" view of the law …

A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson

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Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of deadly …

Liability Insurance At The Tort-Crime Boundary, Tom Baker

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This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance …

American Oresteia: Herbert Wechsler, The Model Penal Code, And The Uses Of Revenge, Anders Walker

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The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims." Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC). This article recovers that role by focusing on the retributive views of its first …

Beyond Intention, Kimberly Kessler Ferzan

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The conventional view is that a result is intended if it is motivationally significant - i.e., if it is why the person acted. However, inseparable effects cases place pressure on this conventional view for we intuitively reject the claim that, for instance, one can intend to decapitate without intending to kill. These cases therefore threaten an important border in both law and morality - the distinction between what we intend and what we foresee. In resolving the problem of inseparable effects, this article challenges the conventional view that intentions are co-extensive with motivational significance. Drawing on philosophy of mind literature, …

Self-Defense And The State, Kimberly Kessler Ferzan

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This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …

At His Discretion (N.): "To Be Disposed Of As He Thinks Fit; At His Disposal, At His Mercy; Unconditionally", J. Amy Dillard

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Review of ANGELA J. DAVIS, ARBITRARY JUSTICE (Oxford University Press, Inc. 2007) 264 pp.

Holistic Culpability, Kimberly Kessler Ferzan

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There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person's mental state to determine if the mental state element is satisfied. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or "culpability," can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?). The tension between descriptive and normative terminology was first identified …

A Reckless Response To Rape: A Reply To Ayres And Baker, Kimberly Kessler Ferzan

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In a recent article in the University of Chicago Law Review, Professors Ian Ayres and Katharine Baker propose the crime of "reckless sexual conduct," criminalizing unprotected first-encounter sexual intercourse. The goals of this proposal are to combat the epidemic of sexually transmitted diseases by requiring condom use and to reduce acquaintance rape by "forcing" communication. While the goals are admirable, the proposal is deeply flawed. As public health legislation, it is overinclusive, thereby punishing the morally innocent, and its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. As rape reform, which is arguably the true aim of …

Murder After The Merger: A Commentary On Finkelstein, Kimberly Kessler Ferzan

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Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

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The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …