Law Commons^™

Constraining Monitors, Veronica Root

Veronica Root

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

The Death Penalty As Incapacitation, Marah S. Mcleod

Marah McLeod

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Anthony O'Rourke

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Anthony O'Rourke

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making. Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon

Cynthia Alkon

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior …

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Cynthia Alkon

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Cynthia Alkon

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …

Criminal Law And Procedure--Bringing It Home, Fernand N. Dutile

Fernand "Tex" N. Dutile

No abstract provided.

Rethinking The Fourth Amendment In The Age Of Supercomputers, Artificial Intelligence, And Robots, Melanie M. Reid

Melanie M. Reid

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Palma Paciocco

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Avishalom Tor

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Memory And Punishment, O. Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

The Languishing Public Safety Doctrine, Brian Gallini

Brian Gallini

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Kit Kinports

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Criminal Procedure In Perspective, Kit Kinports

Kit Kinports

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Stephen E Henderson

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

The Charter And Criminal Justice: Twenty-Five Years Later, Jamie Cameron, James Stribopoulos

Jamie Cameron

When the Charter of Rights and Freedoms turned twenty-five in 2007, Professors Jamie Cameron and James Stribopoulos organized a conference which brought together leading thinkers on the Charterand criminal justice. A strong faculty of academics, judges and practitioners debated and discussed the Charter's impact on criminal justice. The papers from this conference, which have now been edited by Professors Cameron and Stribopoulos, provide a fascinating look at how the Charter has transformed the Canadian criminal justice system.

Criminal Trial Advocacy, J. Smithburn

J. Eric Smithburn

No abstract provided.

Criminal Trial Advocacy, James Seckinger

James H. Seckinger

No abstract provided.

Problems And Cases In Criminal Trial Advocacy, James Seckinger, Donald Beskind

James H. Seckinger

No abstract provided.

United States V. Peters Case File, James Seckinger, Kenneth Broun.

James H. Seckinger

No abstract provided.

International Criminal Law: Cases And Materials, Jimmy Gurule, Jordan Paust, Bruce Zagaris, Leila Sadat, Michael Scharf, M. Cherif Bassiouni

Jimmy Gurule

The fourth edition has been significantly updated, especially to reflect case trends in the International Criminal Court and the International Criminal Tribunals for Former Yugoslavia and for Rwanda (encompassing, among other matters, individual responsibility, defenses, war crimes, genocide, and other crimes against humanity). Some of the chapters have new sub-subtitles and relevant domestic cases have been added or noted in various chapters. There are also additions to the Documents Supplement.

Complex Criminal Litigation: Prosecuting Drg Enterprises And Organized Crime. 3rd Edition., Jimmy Gurule

Jimmy Gurule

Complex Criminal Litigation: Prosecuting Drug Enterprises and Organized Crime provides practitioners and others interested in the federal criminal justice system with a comprehensive analysis of the arsenal of federal laws that provide federal prosecutors the means to combat criminal organizations, their leadership (i.e. the so-called "kingpins") and their infrastructure. These statutes include the Racketeer Influenced and Corrupt Organizations Act (RICO); the Continuing Criminal Enterprise or CCE statute; the Money Laundering Control Act; federal firearms statutes; and criminal and civil forfeiture laws that permit the seizure and forfeiture of the profits and instrumentalities of illegal enterprises. Further, the treatise includes an …

Complex Criminal Litigation: Prosecuting Drug Enterprises And Organized Crime. 2nd Edition., Jimmy Gurule

Jimmy Gurule

No abstract provided.

United States V. William Lloyd, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters Got It Wrong, Melanie M. Reid

Melanie M. Reid

No abstract provided.

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …