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Articles 661 - 690 of 732
Full-Text Articles in Law
The Hidden Costs Of Habeas Delay, Marc D. Falkoff
The Hidden Costs Of Habeas Delay, Marc D. Falkoff
University of Colorado Law Review
Because habeas petitioners seek a court order for liberty rather than compensation, judges have a duty to decide habeas petitions promptly. But increasingly, the federal courts have fallen behind on their heavy habeas dockets, and many petitions-some of which are meritorious-remain undecided for years. First, this Article makes the normative and historical argument that speed must be, and always has been, central to the function of habeas. Second, it analyzes newly compiled Administrative Office of the United States Courts data on more than 200,000 habeas petitions and demonstrates empirically for the first time that there is a widespread and growing …
The Disparate Treatment Of Neuroscience Expert Testimony In Criminal Litigation, Jamie Wagenheim
The Disparate Treatment Of Neuroscience Expert Testimony In Criminal Litigation, Jamie Wagenheim
The Appendix
No abstract provided.
I Want My (Immigration) Lawyer! The Necessity Of Court-Appointed Immigration Counsel In Criminal Prosecutions After Padilla V. Kentucky, Scott R. Grubman
I Want My (Immigration) Lawyer! The Necessity Of Court-Appointed Immigration Counsel In Criminal Prosecutions After Padilla V. Kentucky, Scott R. Grubman
Nevada Law Journal
No abstract provided.
Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole
Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole
Georgetown Law Faculty Publications and Other Works
Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Georgetown Law Faculty Publications and Other Works
A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …
Are Prosecutors Born Or Made?, Abbe Smith
Are Prosecutors Born Or Made?, Abbe Smith
Georgetown Law Faculty Publications and Other Works
In more than thirty years of criminal law practice--from public defender in Philadelphia to professor running a criminal law clinic in New York, Boston, and DC--the author has had countless encounters with prosecutors and countless conversations. Early in her career, the encounters and conversations were noteworthy--something to rail about back at the office, or to "dine out on" with friends. Soon enough they became commonplace, not even worthy of mention, just the way things were. But the author felt it important to pick a few examples and talk about them.
Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod
Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod
Georgetown Law Faculty Publications and Other Works
A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.
With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …
The U.S. Criminal-Immigration Convergence And Its Possible Undoing, Allegra M. Mcleod
The U.S. Criminal-Immigration Convergence And Its Possible Undoing, Allegra M. Mcleod
Georgetown Law Faculty Publications and Other Works
The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence--which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus--distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite …
Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod
Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod
Georgetown Law Faculty Publications and Other Works
In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:
(1) a therapeutic jurisprudence model,
(2) a judicial monitoring model,
(3) an order maintenance model, and
(4) a decarceration model.
Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the …
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
Georgetown Law Faculty Publications and Other Works
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …
When The Law Doesn't Work, Richard H. Underwood
When The Law Doesn't Work, Richard H. Underwood
Fordham Urban Law Journal
This Article looks at Dylan songs and traces them back to "true crime" to relate Dylan to the law. It looks at "Ballad of Hollis Brown," "Ballad of Donald White," "The Lonesome Death of Hattie Carroll," "Hurricane," "Percy's Song," and "Talking Bear Mountain Picnic Massacre Blues." Part I looks at Dylan's traditional songs. Part II looks at Dylan's finger-pointing songs. Finally, part III looks at "Bad Judge Ballads."
Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks
Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks
Faculty Scholarship
No abstract provided.
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
Articles
The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death than white …
Intentional Discrimination In Farrakhan V. Gregoire: The Ninth Circuit's Voting Rights Act Standard "Results In" The New Jim Crow, Jonathan Sgro
Intentional Discrimination In Farrakhan V. Gregoire: The Ninth Circuit's Voting Rights Act Standard "Results In" The New Jim Crow, Jonathan Sgro
Villanova Law Review
No abstract provided.
Twenty-First Century Fingerprints: The Third Circuit's Approval Of Dna Collection Upon Arrest In United States V. Mitchell, Megan Pownall
Twenty-First Century Fingerprints: The Third Circuit's Approval Of Dna Collection Upon Arrest In United States V. Mitchell, Megan Pownall
Villanova Law Review
No abstract provided.
"No Older 'N Seventeen": Defending In Dylan Country, Abbe Smith
"No Older 'N Seventeen": Defending In Dylan Country, Abbe Smith
Fordham Urban Law Journal
This article is about an actual experience the author had defending a teenager accused of a serious crime where Bob Dylan grew up-- the Minnesota Iron Range. In order to protect the young man's privacy, it does not divulge the actual time period of the case. Likewise, details about his life and the charges he was facing have been changed. His name has been changed to Jamal. Things did not go well for Jamal. Though a child when he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the …
Some Notes On Property Rules, Liability Rules, And Criminal Law, Keith N. Hylton
Some Notes On Property Rules, Liability Rules, And Criminal Law, Keith N. Hylton
Faculty Scholarship
The property-liability rules framework, which offers a robust positive theory of criminal law, has come under attack in recent years. One critique, which I label the Indifference Proposition, argues that property rules and liability rules are equivalent in low transaction cost settings. In this paper I examine the conditions under which the Indifference Proposition is valid. In several plausible low transaction-cost settings the proposition is not valid.
Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons
Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons
Faculty Scholarship
Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?
Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz
Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz
Faculty Scholarship
These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions – between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.
Aedpa Mea Culpa, Larry Yackle
Aedpa Mea Culpa, Larry Yackle
Faculty Scholarship
In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.
The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal
The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal
Journal Articles
Nearly all felony convictions - about 95 percent - follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty …
General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga
General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga
Faculty Scholarship
We compare crime and incarceration rates over time for the United States, Canada, and England and Wales, as well as for a small selection of comparison countries. Shifts in U.S. punishment policy led to a five-fold increase in the incarceration rate, while nearly every other country experienced only minor increases in incarceration. The large shifts in U.S. punishment policy do not seem to have caused commensurately large improvements in public safety.
Frye And Lafler: No Big Deal, Gerard E. Lynch
Frye And Lafler: No Big Deal, Gerard E. Lynch
Faculty Scholarship
The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …
The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring
The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring
Faculty Scholarship
The ongoing debate about capital punishment in the United States juggles several contentious questions. Innocence, cost, racial fairness, proportionality, retributivist calculus, and deterrence concerns thread a literature whose richness testifies to the endurance of capital punishment in American legal and political culture. For proponents of capital punishment, the connection between the moral and utilitarian or consequentialist positions trumps all other concerns: They suggest that if the death penalty can prevent – through the incapacitation of the offender and general deterrence of would-be killers – the loss of even one innocent life from murder, then execution is a morally justified or …
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Faculty Scholarship
A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …
Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein
Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …
Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue
Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …
Defining Inchoate Crime: An Incomplete Attempt, Michael T. Cahill
Defining Inchoate Crime: An Incomplete Attempt, Michael T. Cahill
Faculty Scholarship
No abstract provided.
Blind Justice, Bennett Capers
Politics And Punishment: Reactions To Markel's Political Retributivism, Michael T. Cahill
Politics And Punishment: Reactions To Markel's Political Retributivism, Michael T. Cahill
Faculty Scholarship
No abstract provided.