Law Commons^™

Statement Of Steven L. Chanenson Before The United States Sentencing Commission Regarding Retroactivity Of Crack Guidelines Amendments, Steven Chanenson

Steven L. Chanenson

No abstract provided.

Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility, Dermot M. Groome

Dermot M Groome

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …

Retribution's Role, John Bronsteen

John Bronsteen

For many decades, criminal law scholars have directed their efforts at finding a philosophical justification of criminal punishment. This endeavor has created a split between retributivists (who deem punishment justified by the wrongdoing of the offender) and utilitarians (who deem it justified by its good consequences such as deterring future crime). This Article suggests that the dialogue between retributivists and utilitarians would profit from a change in the way they frame the central question of what justifies punishment. Specifically, the question could be divided as follows. First, why does the state have a right to punish? And second, why does …

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Sarah Mourer

This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be …

United States Implementation Of The International Criminal Court: Towards The Federalism Of Free Nations, Lauren F. Redman

Lauren F Redman

The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court. The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court (ICC).

Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …

To Speak Or Not To Speak? Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Story Thompson

Mikah K. Story Thompson

This article is the first to explore the true impact of the recently amended Fed. R. Evid. 408 on parallel proceedings. Parallel proceedings exist where the government conducts both a civil and criminal investigation against a defendant for single instance of alleged misconduct. Prior to the rule’s amendment, a defendant facing parallel proceedings had the ability to negotiate settlement of the civil suit without fear that any incriminating statements made during settlement talks would later re-surface in the criminal case. However, the amendment to Rule 408 singles out defendants facing parallel proceedings by stating that the government may use any …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V. Michigan, Shenequa L. Grey

Shenequa L. Grey

In Hudson v. Michigan, 126 S. Ct. 2159 (2006), the United States Supreme Court overruled decades of precedent and held that evidence obtained in violation of the “knock and announce” rule was admissible in the prosecutions case in chief against the defendant even though this evidence was technically unconstitutionally obtained. In doing so, the Court upheld the knock and announce rule, but strictly applied a “cost/benefit analysis” to conclude that the “exclusionary rule” was not applicable in this context. This analysis is consistent with other exceptions to the exclusionary rule established by the Court as well as with the “good …

But Did They Listen?, Robert Blecker

robert blecker

BUT DID THEY LISTEN? Based upon the Death Penalty Study Commission’s near unanimous final report, New Jersey stands poised to become the first state during the modern era to legislatively abolish the death penalty. Hailed nationally and internationally as a model, apparently unbiased and thorough, the Commission’s final report distorts the evidence and worst of all, ignores basic well-established perspectives framing the great debate. This essay takes on the Report’s anti-retributive bias, and provides an alternative point of view that ought to counter a rush to judgment and spur legislators in other states more seriously to reconsider life (without parole) …

Criminal Forfeiture Procedure In 2007: A Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This article is one in a series of annual updates on the rapidly expanding area of criminal asset forfeiture procedure. Organized topically, the article analyzes the recent cases, beginning with those discussing the nature and scope of criminal forfeiture and then continuing through the steps in a criminal prosecution, from indictment through sentencing and the post-trial ancillary proceeding regarding the rights of third parties. The article covers cases decided in 2006. Copyright © 2007 Thomson Reuters/West.

To See Or Not To See: People V. Brandon And Its Allowance For An Abridgement Of A Defendant’S Right To Face-To-Face Examination Under The Confrontation Clause Of The Sixth Amendment, Jillian Ostrove

Jillian Ostrove

No abstract provided.

Federal Cocaine Sentencing In Transition, Steven Chanenson, Douglas Berman

Steven L. Chanenson

No abstract provided.

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For "New And Compelling Evidence", David S. Rudstein

David S Rudstein

No abstract provided.

Can And Will Information Spur Post-Modern Setencing Reforms?, Steven Chanenson, Douglas Berman

Steven L. Chanenson

No abstract provided.

Aedpa's (Imaginary) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Aedpa's (Imaginery) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Aedpa's (Imaginary) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

The Privatization Of Immigration Law Enforcement, Huyen T. Pham

Huyen T. Pham

In the immigration policy debate, the question of who enforces our immigration laws can be as significant as what those policies are. And on that question, a significant and startling trend in immigration law has emerged: the shifting of enforcement responsibilities once held exclusively by government officers to private parties such as employers, landlords, and public carriers. These laws obligate private parties to ensure that they provide their goods and services only to those with legal immigration status; private parties who fail to do so face civil and criminal penalties. This article maps the expansion of private enforcement laws and …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian Halliburton

Erin Espedal

Emerging surveillance technologies now allow operators to collect information located within the brain of an individual, allow the collection of forensic evidence regarding cerebral and cognitive processes, and are even beginning to be able to predict human intentions. While science has not yet produced a mind-reading machine per se, the devices referred to as “cognitive camera technologies” are substantial steps in the direction of that inevitable result. One such technique, a proprietary method called Brain Fingerprinting, is used as an example of the strong trend towards increasingly invasive and ever more powerful surveillance methods, and provides an entrée to a …

Fear And Loathing In Insanity Law: Explaining The Otherwise Inexplicable Clark V. Arizona, Susan Rozelle

Seattle University

Eric Clark believed he was battling space aliens when he shot and killed Officer Jeffrey Moritz. Charged under a first-degree murder statute that requires knowledge the victim is a police officer, Clark should have been “not guilty” two ways: first, by reason of insanity, and second, because he did not satisfy the mens rea requirement. Instead, he was found guilty, and the United States Supreme Court’s decision upholding this result tortured insanity law jurisprudence. The only plausible explanation for the Court’s decision lies in society’s emotional reaction to mental illness. Fear and loathing have displaced not only care and compassion, …

Coporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This article address a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, represented primarily by the American Bar Association, the Association of Corporate Counsel, and the National Association of Criminal Defense Lawyers, on the one side, and the United States Department of Justice, on the other. The fight is over federal prosecutors’ escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department views privilege waiver as a legitimate and very important tool in its post-Enron battle …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando 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 in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Toward A Feminist State: What Does Effective Prosecution Of Domestic Violence Mean?, Michelle Dempsey

Michelle Madden Dempsey

This article examines domestic violence criminal prosecutions and addresses what effective prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that effective prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus

Why Sexual Prenetration Requires Justification, Michelle Dempsey, Jonathan Herring

Michelle Madden Dempsey

This article defends the claim that sexual penetration is a prima facie wrong: it requires justification. We defend this claim by reference to considerations relating the use of physical force required to achieve sexual penetration, the occurrence and risk of harm posed by sexual penetration, and the negative social meaning of sexual penetration in patriarchal societies. The step we take in this article is a preliminary part of a larger project. We are not here directly concerned with questions of criminalisation; we aim simply to map the moral landscape of sexual penetration.

Mentally Ill Prisoners In The California Department Of Corrections And Rehabilitation: Strategies For Improving Treatment And Reducing Recidivism

W. David Ball

California prisons and jails treat more people with mental illness than hospitals and residential treatment centers combined. Mentally ill prisoners receive inadequate medical and psychiatric care, serve longer terms than the average inmate, and are released without adequate preparation and support for their return to society. As a result, these offenders are much more likely to violate parole and return to prison, cycling ever-downward. With the California prison healthcare system currently in receivership, and the state poised to spend more money on prisons than on colleges in the coming fiscal year, this paper addresses a topic that is both underreported …

Prosecuting Government Fraud Despite The Csi Effect: Getting The Jury To Follow The Money, James B. Johnston

James B Johnston

Prosecutors have complained that jurors who think they are educated in crime scene investigations by watching T.V. have made it difficult to prove cases even when the charge is white collar in nature because they expect the forensics the see on the show "CSI". In regard to government fraud cases, the prosecutor simply must get the jury to follow the fraud linked money. This article notes that those in law enforcement must give the jury what they want to get them to follow the money especially when the case concerns government fraud and corruption.

Magistrates’ Examinations, Police Interrogations, And Miranda—Like Warnings In The Nineteenth Century, Wesley M. Oliver

Wesley M Oliver

The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper …

Are All Forms Of Joint Crime Really "Organized Crime"?, Boaz Sangero

Prof. Boaz Sangero

It is seemingly possible to think that the new Israeli Combating Criminal Organizations Law, 2003 is a desirable statute. After all – how many struggles are more justified than the fight against organized crime? This Article will demonstrate that, in view of the extensive and comprehensive legislation already existing in Israel prior to the enactment of the new law, there was no need at all for an additional statute. Furthermore, it will show that the excessively broad definition given to the term “criminal organization” is liable to dominate Israeli criminal law and make the already draconian penal code – which …

Pinochet And The Uncertain Globalization Of Criminal Law, Robert C. Power

Robert C Power

Economics Of Plea Bargaining, Richard Adelstein

Richard Adelstein

A short summary of earlier work for a sociological audience.