Law Commons^™

Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham

Law and Contemporary Problems

If the punishment is taken out of the process, and the processes of criminal justice become effective at restoration--and if rigorous empirical research might show that a restorative process costs less money and produces greater public safety--that would be a result everyone would embrace.

Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe

Faculty Scholarship

No abstract provided.

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

Left Out, Louis Michael Seidman

Law and Contemporary Problems

Seidman presents information on the collapse of the progressive left's position on criminal justice. The faltering of the left in this area is due to inherent contradictions in their position which have weakened their stance overall.

Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii

Faculty Publications

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

All Faculty Scholarship

This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

The Trials Of Al Qaeda: Federal Court Vs. Military Commission, Toni Locy

Case Western Reserve Journal of International Law

No abstract provided.

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Scholarly Articles

No abstract provided.

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

Implementing Blakely, Jenia I. Turner

Faculty Journal Articles and Book Chapters

By declaring that sentence-enhancing facts must be proven to a jury beyond a reasonable doubt, the Supreme Court in Blakely v. Washington has raised a number of questions about the future of guided sentencing. One of these questions - only beginning to be explored - is what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines. What factors would be submitted to the jury and what instructions would be given? Would sentencing issues be presented to the jury in a separate hearing, distinct from trial? If so, what evidentiary rules would apply?

This paper …

Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin

Vanderbilt Law School Faculty Publications

The organizers of this symposium gave us the choice of writing about effective assistance of counsel or about teaching criminal procedure. I've decided to do both. This article discusses teaching the criminal procedure course most often called "Police Practices," for which I write a textbook entitled Regulation of Police Investigation: Legal, Historical, Empirical and Comparative Materials.' Borrowing heavily from the Teacher's Manual for that book, the first part of this article describes my general philosophy for teaching the course. The rest of the article illustrates this philosophy by describing how I teach students about the application of the Sixth Amendment …

Beyond Blakely, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Seven Habits Of A Highly Effective Scholar, Jerold H. Israel

Articles

Yale Kamisar has been my friend and colleague for almost forty years now, and my first inclination was to write about those relationships, which have meant so much to me. But I know that other friends and colleagues participating in this tribute issue can bring to the description of those relationships far greater skill and far greater eloquence. I have been Yale's coauthor for roughly thirty-five years on his professional "pride and joy" - Modern Criminal Procedure' - and that is another relationship that I could describe with warmth and affection. But Wayne LaFave, who has shared this same role, …

The Adjudication Of Minor Offenses In New York City, Ian Weinstein

Fordham Urban Law Journal

American criminal justice is founded on overcriminalization and discretion. Our legislatures have long criminalized much more conduct than can be effectively sanctioned. American police and prosecutors have been granted virtually unreviewable authority (discretion) to allocate investigative and prosecutorial resources. Minor crimes absorb the bulk of our ordinary, local enforcement efforts and there is an endless supply of minor crime, which may be pursued. With minor offenses, discretion is critical at all phases. This article argues that criminal courts, where ninety percent of all cases are heard, could benefit from reform. The author argues for the development of the record so …