Law Commons^™

Mental Illness, Police Power Interventions, And The Expressive Functions Of Punishment, Robert F. Schopp

Robert F Schopp

The state exercises coercive force under the police power to protect the public order, security, and justice. When individuals who manifest significant psychological impairment harm or endanger others, police power interventions can involve several different institutional structures within the criminal justice system or the alternative institution of civil commitment. The analysis presented in this paper draws attention to the significance of the expressive functions of criminal punishment in selecting the most justified institutional structures for police power interventions intended to prevent impaired individuals from harming others. These functions arguably carry important implications for impaired individuals who harm or endanger others, …

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

David N Cassuto

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict. This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

No abstract provided.

Slow Acid Drips And Evidentiary Nightmares: Smoothing Out The Rough Justice Of Child Pornography Restitution With A Presumed Damages Theory, Mary Margaret Giannini

Mary Margaret Giannini

Gist In The Mist: What Is The Gist Of The Mail Fraud Statute And Why Should We Care?, C.J. Williams

C.J. Williams

This article explores the origin of the accepted truism that each mailing in furtherance of a scheme to defraud constitutes a separate mail fraud offense, finding it is based upon Supreme Court precedent interpreting a prior, and very different version, of the mail fraud statute. The article examines the language of the current mail fraud statute, compares it to other fraud statutes modeled on the mail fraud statute, and concludes each mailing should not be the unit of prosecution under the current language of the statute. The article discusses the problems that arise from considering each mailing in furtherance of …

Police Cell Phone Searches: Where's The Privacy, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Torture Warrants, Necessity, And Self-Defense, Fritz Allhoff

Fritz Allhoff

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense …

Empirical Objections To Torture: A Critical Reply, Fritz Allhoff

Fritz Allhoff

Those who support torture in ticking-time-bomb cases are often criticized as failing to consider empirical objections to torture; however, torture’s critics often wield this charge uncritically, doing little more than throwing out platitudes without considering the role of those platitudes in the dialectic. I agree with the critics that more empirical engagement is owed than is typically on offer, but deny that such engagement vindicates their position. This essay therefore considers various stock objections to the actual use of torture, while ultimately arguing that those objections fail to undermine the use of torture in exceptional cases. In particular, we will …

Criminal Forfeiture Procedure In 2012: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is an annual review of the case law regarding asset forfeiture in federal criminal cases. It discusses the permissible scope of a forfeiture order, and then takes the reader through each step in the forfeiture process from seizure and restraint to indictment, trial or plea, sentencing, and the ancillary proceeding which the rights and interests of third parties are resolved.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

Bringing Down A Legend: How Pennsylvania’S Investigating Grand Jury Ended Joe Paterno’S Career, Brian Gallini

Brian Gallini

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

Harmelin's Faulty Originalism, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Michal Buchhandler-Raphael

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Michal Buchhandler-Raphael

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, …

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Lee Kovarsky

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Michael L. Perlin

Michael L Perlin

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

Abstract

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the …

Notoriously Lousy: Applying The Strickland Test When Defense Counsel Fails To Seek To Avoid The Imposition Of Collateral Consequences, Alfredo Vasquez

Alfredo Vasquez

From the 1970s through the early 2000s, plea bargains resolved the vast majority of criminal cases in the United States. While the number of guilty pleas has been consistently high, the number of collateral consequences flowing from criminal convictions has increased. The Supreme Court imposed some regulation on guilty pleas during the last part of the 1960s but it was not until its decision in Padilla v. Kentucky in 2010 that the Court began regulating defense counsel’s duties towards his client during plea negotiations. The Court so far has limited its rulings to immigration consequences in Padilla, and the attorney-client …

Requiring Dangerousness: An Idea Whose Time Has Come (Again), Steven R. Morrison

Steven R Morrison

It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil,” which justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Professor Neal Kumar Katyal’s excellent defense of conspiracy law rests on this assumption, but Professor Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true. This Article rejects the distinct evil assumption by showing how Katyal’s and Goldstein’s respective frames lead to their divergent conclusions. It argues that to satisfy both commentators’ legitimate concerns, conspiracies must be shown to be dangerous before criminal liability can attach. This requirement was included …

Despite Bryant, Why Bruton Can No Longer Survive In A Post-Crawford World, James Bilek

James Bilek

IN 2004, THE SUPREME COURT OF THE UNITED STATES DECIDED ONE OF ITS MOST CONTROVERSIAL CASES IN RECENT MEMORY: CRAWFORD V. WASHINGTON. IN CRAWFORD, THE COURT HELD THAT THE CONFRONTATION CLAUSE IN THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRES THAT EVERY CRIMINAL DEFENDANT BE AFFORDED THE PROCEDURAL RIGHT TO CROSS-EXAMINE CERTAIN WITNESSES AGAINST THEM. ALTHOUGH THIS LIKELY OVERRULED THE PRIOR ROBERTS STANDARD, SOMETHING MORE SUBTLE WAS ALSO LURKING IN ITS BACKGROUND. DECIDED ALMOST FORTY YEARS EARLIER, BRUTON V. UNITED STATES FORBID THE USE OF HEARSAY EVIDENCE AGAINST A DEFENDANT, ABSENT CROSS-EXAMINATION, UNLESS THE APPLICABLE RULES OF EVIDENCE PROVIDED …

Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen

Don Stemen

In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …

Separate But Equal: Miranda’S Rights To Silence And Counsel, Steven Grossman

Steven Grossman

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and those asking for counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to decisions which are inconsistent, make little sense and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. It …

Separate But Equal: Miranda’S Rights To Silence And Counsel, Steven Grossman

Steven Grossman

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and those asking for counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to decisions which are inconsistent, make little sense and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. It …

Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen, Bruce Frederick

Don Stemen

In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …

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 …

Outing-- And Ousting-- The "Hidden" Hyde: Toward Repeal And Replacement Of The Hyde Amendment, Rebecca Stewart

Rebecca K Stewart

Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years.

The Article argues that early …