Law Commons^™

The New Scheme For Foreign National Prisoners: Vigilance Is Key, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The provision governing the Tariff Expired Removal Scheme (TERS) is contained in section 32A of the Crime (Sentences) Act 1997 as inserted by section 119 of the LASPO Act. In broad terms, TERS applies only to foreign national prisoners whom the secretary of state can remove from the UK if the foreign national prisoner is serving a life sentence that includes an IPP sentence, has served their minimum term, i.e. tariff, and is liable to removal from the UK. Section 119 adopts the definition of liability to removal from the UK in section 259 of the Criminal Justice Act 2003.

Should Delaware Execute Its Death Row 'Volunteers'?, Jules Epstein

Jules Epstein

No abstract provided.

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Valerie P. Hans

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Risks Of Criminal Liability For Union Business Agents, Edwin Render

Edwin R. Render

This paper discusses some of the risks of violating criminal laws that union stewards and business agents encounter in connection with representing employees. It is not about RICO. The analysis is particularly focused on the types of crimes they might commit inadvertently in grievance meetings with management, when preparing and presenting cases in labor arbitrations and in representing and advising employees in matters such as worker’s compensation and unemployment compensation proceedings. The potential for criminal liability is discussed for business agents and union stewards in both the public and private sectors. While most business agents or stewards would not intentionally …

It's Complicated: Privacy And Domestic Violence, Kimberly D. Bailey

All Faculty Scholarship

This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has both positive and negative aspects, and this Article examines the value that more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring that they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims’ lives that limitations are needed to prevent the threat of state abuse. These …

Prosecutorial Conflicts Of Interest In Post-Conviction Practice, Keith Swisher

Keith Swisher

Prosecutors, our ministers of justice, do not play by the same conflict of interest rules. All other attorneys should not, and cannot, attack their prior work in transactional or litigation matters; nor should other attorneys unquestionably represent clients in matters in which the attorneys themselves face disciplinary, civil, or criminal liability. When prosecutors have likely convicted an innocent person, however, prosecutors are asked to review their own prior work objectively and then to undo it. But they understandably suffer from a conflict between their duty to justice and their duty to themselves — their duty to seek the release of …

Delinquent By Reason Of Poverty, Tamar R. Birckhead

Tamar R Birckhead

This Article, written for the 12th Annual Access to Equal Justice Colloquium, explores the disproportionate representation of low-income children in the United States juvenile justice system. It examines the structural and institutional causes of this development, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. It introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which children are adjudicated delinquent. It argues that at each stage of the process—from intake through adjudication to disposition and probation—the court gives as much …

Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus

David B Kopel

This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.

Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.

Part III analyzes the conflict between congressionally-imposed prohibition, and state …

The Price Of Private Enforcement Under The False Claims Act, David Y. Kwok

David Y Kwok

Private plaintiffs and their attorneys are motivated at least in part by monetary awards, but what is the appropriate award for litigation? I consider the case of the False Claims Act, through which the U.S. government recovers losses due to fraud by paying a bounty to whistleblowers. These whistleblowers and their attorneys generally receive a minimum 15% bounty in successful cases. Utilizing a data set of over 3000 fraud cases, I present observational evidence that whistleblowers are reluctant to bring cases valued under $440,000 and that they would be more likely to do so given a higher bounty percentage. This …

Defense Counsel, Trial Judges, And Evidence Production Protocols, Darryl K. Brown

Darryl K. Brown

This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be understood as a problem of the state’s adversarial adjudication process, for which public officials—notably judges, whose judgments depend …

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram

Hadar Aviram

Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …

Two Truths And A Lie: In Re John Z. And Other Stories At The Juncture Of Teen Sex & The Law, Michelle Oberman

Michelle Oberman

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the …

Mexico's Crisis: When There's A Will, There's A Way, Melanie M. Reid

Melanie M. Reid

The United States under the Obama administration is committed to many of the tools being advocated in Mexican President Felipe Calderón’s holistic approach to combat drug trafficking. This Article explores the United States’ Merida Initiative policy and critiques its effectiveness. The Beyond Merida Initiative announced in 2010 revamped the prior 2007 initiatives, and provided more emphasis on additional training rather than equipment or direct financial aid to Mexico. Neither initiative corrects problems endemic to Mexico which limits the possibility of success. Corruption, anti-American resentment, and a drastically different legal system in Mexico hinder our efforts to become an effective ally …

Enforcing Animal Welfare Statutes: In Many States, It’S Still The Wild West, Elizabeth Rumley, Rusty Rumley

Elizabeth Rumley

Authority to enforce animal welfare laws has been delegated to private citizens involved with humane organizations since the 1880s when the majority of those statutes were originally passed. Currently, over half of the states and the District of Columbia grant some form of law enforcement power to members or officers of humane societies. The authority ranges from the power to arrest to the ability to seize and destroy private property. In some cases it includes the right to carry a firearm-- even, in one state, as a convicted felon-- while engaging in law enforcement activities. After a brief history of …