Law Commons^™

Default Culpability Requirements: The Model Penal Code And Beyond, Scott England

Faculty Scholarship

This Article examines section 2.02(3) of the Model Penal Code, both as proposed by the ALI and as modified by MPC states, and recommends new default culpability rules to replace it.

The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section …

Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule …

Cybersecurity-Corporate Espionage, Amy J. Ramson

Open Educational Resources

The goals of this team activity in the area of criminal law, cybersecurity and cyber crime are to facilitate team work, critical thinking and presentation skills. Students will be grouped into two teams. As a team, they will analyze cases about corporate espionage committed by nation states and industry competitors through the questions presented in the activity. They will present their analysis to the class.

Cybersecurity-Cybercrime-The Legal Environment, Amy J. Ramson

Open Educational Resources

This presentation covers the legal environment of cybercrime to date. It addresses: the challenges of law enforcement; federal government vs. sate jurisdiction of cybercrime; law enforcement department and agencies which handle cybercrime; criminal statutes and privacy statutes.

Introduction, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

An Introduction by Angela J. Davis Distinguished Professor of Law, American University Washington Collge of Law

The scourge of mass incarceration has plagued the United States for decades. With roughly 2.3 million people in federal and state prisons and close to 7 million people under some form of criminal justice control' in prison or jail or on probation and parole-this country maintains the unenviable status of having the highest incarceration rate in the world. Demands for reform have come in fits and starts, resulting in modest changes that have done little to reduce the number of people incarcerated or under …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Floating Lungs: Forensic Science In Self-Induced Abortion Prosecutions, Aziza Ahmed

Faculty Scholarship

Pregnancy that ends in stillbirth or late miscarriage—particularly where a person gives birth outside of a hospital—raises the specter of criminal behavior. To successfully prosecute a person for the death of a child, however, requires proving that the child was born alive. Prosecutors mobilize forensic science as an objective way to determine life. This Essay focuses on one such forensic method: the hydrostatic lung test (“HLT”), also known as the floating lung test (“FLT”). Although there are debates about the “correct” way to perform the exam, in essence, the test requires that a forensic scientist take pieces of the lung …

Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman

Duke Journal of Constitutional Law & Public Policy Sidebar

In 1995, Kansas, along with a small number of other states, passed a statute abrogating the widely recognized common law insanity defense. At common law, a defendant could raise the defense when a mental illness impaired his ability to distinguish right from wrong, allowing him to escape liability even when the elements of the crime were otherwise fulfilled. However, under Kansas’ statutory scheme, evidence of a defendant’s mental illness can only be used to negate the mens rea element of the offense. In other words, evidence of mental illness is only relevant when it shows that the defendant lacked the …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Articles in Law Reviews & Other Academic Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

Misdemeanors By The Numbers, Sandra G. Mayson, Megan T. Stevenson

All Faculty Scholarship

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

Reform Prosecutors And Separation Of Powers, Logan E. Sawyer Iii

Scholarly Works

For decades, state and local prosecutors won election by promising to be tough on crime. Today, a new breed of prosecutor has gained prominence by campaigning on, and then implementing, reform agendas. Rather than emphasize the crimes they plan to prosecute, these reform prosecutors promise to use their discretion to stop the prosecution of certain crimes and halt the application of certain sanctions. They base their decision not on a lack of resources, but rather on a belief that the enforcement of those laws is unwise or unjust. Critics have decried such policies as both inappropriate and undemocratic. Prosecutors, critics …

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

All Faculty Publications

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

From The Legal Literature: Disentangling Prison And Punishment, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

De-Democratizing Criminal Law, Benjamin Levin

Publications

No abstract provided.

Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

All Faculty Publications

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Detecting Mens Rea In The Brain, Owen D. Jones, Read Montague, Gideon Yaffe

Vanderbilt Law School Faculty Publications

What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization …

Is Solitary Confinement A Punishment?, John F. Stinneford

UF Law Faculty Publications

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding …

Prosecutorial Declination Statements, Jessica A. Roth

Articles

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Transnational Government Hacking, Jennifer C. Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green

Faculty Scholarship

The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to trust criminal process. For example, sexual assaults remain grossly under-reported and under-prosecuted. Less than 1 percent of sexual assault crimes result in a felony conviction. …

Afrodescendants, Law, And Race In Latin America, Tanya K. Hernandez

Faculty Scholarship

Law and Society research in and about Latin America has been particularly beneficial in elucidating the gap between the ideals of racial equality laws in the region and the actual subordinated status of its racialized subjects. Some of the recurrent themes in the race-related literature have been: the limits of the Latin American emphasis on criminal law to redress discriminatory actions; the limits of multicultural constitutional reform for full political participation; the insufficiency of land reform and recognition of ethnic communal property titles; and the challenges to implementing race conscious public policies such as affirmative action. Especially illuminating have been …

Escaping The Fingerprint Crisis: A Blueprint For Essential Research, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a fingerprint crisis in the courts. Judges and jurors regularly convict criminal defendants based on fingerprint evidence, but there are serious questions about the accuracy and reliability of this evidence. The few studies delving into the accuracy and reliability of fingerprint examiners’ work suggest a high error rate and demonstrate that, when faced with the same prints under different conditions, fingerprint examiners frequently reach different results than they previously reached. Further, there is no scientific basis for fingerprint matching. It is unknown whether and to what extent fingerprints are unique; the degree to which fingerprints change under various …

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …