Law Commons^™

Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahy

UF Law Faculty Publications

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED …

Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, E. Lea Johnston

UF Law Faculty Publications

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …

The Status And Legitimacy Of M’Naghten’S Insane Delusion Rule, E. Lea Johnston, Vincent T. Leahy

UF Law Faculty Publications

This Article investigates jurisdictions’ compliance with M’Naghten’s directive for how to treat delusions in insanity cases and assesses the validity and reasonableness of courts’ application of the law. Most U.S. jurisdictions employ an insanity test roughly modeled on the rule articulated in the 1843 M’Naghten’s Case. This test focuses on a defendant’s inability to know, because of a mental disease, the nature of her act or its wrongfulness. But the M’Naghten judges also issued a second rule — particular to delusions — that has received much less attention. This rule holds that, when the defendant labors under a “partial delusion …

Mental Health Courts And Sentencing Disparities, E. Lea Johnston, Conor P. Flynn

UF Law Faculty Publications

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court—including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of …

The Dramas Of Criminal Law: Thurman Arnold’S Post-Realist Critique Of Law Enforcement, Mark Fenster

UF Law Faculty Publications

The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and …

Communication And Competence For Self-Representation, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards to …

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Theorizing Mental Health Courts, E. Lea Johnston

UF Law Faculty Publications

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of …

Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competency standard for self-representation than to stand trial. The Court declined to specify the contents of a permissible representational competence standard, but cited with support the construct of adjudicative competence developed by Professor Richard Bonnie. While Bonnie's proposal may provide an appropriate framework for evaluating the competence of represented defendants' decisions, it is at most a starting point for defining the capacities needed for self-representation at trial. This Article begins by exposing three reasons why Bonnie's approach is …

Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James E. Coleman Jr., Angela Davis, Michael Gerhardt, K. C. Johnson, Lyrissa Barnett Lidsky, Howard M. Wasserman

UF Law Faculty Publications

This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools (SEALS) in July 2008 in West Palm Beach, Florida. The transcript has been edited for grammar, punctuation and writing style, as well as for limited content changes.

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale

UF Law Faculty Publications

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for …

A Criminal Procedure Regime Based On Instrumental Values: A Review Of 'About Guilt And Innocence: The Origins, Development, And Future Of Constitutional Criminal Procedure,' By Donald A. Dripps (Prager Publishers, 2003), Tracey Maclin

UF Law Faculty Publications

Like many legal academics, Professor Donald Dripps believes that the Supreme Court's criminal procedure doctrine is a mess. Dripps believes that the Court's doctrine "is in large measure responsible for the failure of the criminal-procedure revolution" and contends that "current doctrine does not reflect prevailing (and justified) values about criminal process." To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. "About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure" is a comprehensive …

Reconceptualizing The Expert Witness: Social Costs, Current Controls And Proposed Responses, Jeffrey L. Harrison

UF Law Faculty Publications

Unlike virtually any other business, expert witnesses are not typically held accountable in either tort or contract law for their commercial activities. This means that many are inclined to deliver what the market demands - partisan, biased, or plainly dishonest testimony - without concern for the costs this testimony may impose on others. This immunity from the internalization of the social cost of their testimony is hard to reconcile with any moral or economic standard. Harsh judicial reactions to some experts and a slight increase in expert witness liability may signal that a change in the privileged status of experts …

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy R. Mashburn

UF Law Faculty Publications

This Article argues that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of the …

Bridging The Gap Between The Rules Of Evidence And Justice For Victims Of Domestic Violence, Lisa Marie De Sanctis

UF Law Faculty Publications

The time has come to bridge the gap between following the rules of evidence and serving justice for victims of domestic violence. I propose that the best way to accomplish this goal is to create a specialized evidentiary rule for the admissibility of uncharged offenses of domestic violence in domestic violence prosecutions.4 The proposed evidentiary rule is based on the new Federal Rules of Evidence 413- 414, which accomplish the same for victims of rape and sexual molestation.

First, in order to give the reader an understanding of the need for this legislation, I will discuss the difficulties that prosecutors …

When Juries Meet The Press: Rethinking The Jury's Representative Function In Highly Publicized Cases, Kenneth B. Nunn

UF Law Faculty Publications

This article explores questions related to the emergence of the jury's new representative function. Section II examines traditional notions of jury representativeness by demonstrating how the jury came to be viewed as a means of providing community input into the criminal justice process. Section II also describes how a broadly representative jury can aid in fact-finding and provide legitimacy for the verdict. Finally, section II explains how a jury system, closed to public exploitation, was traditionally seen as a way to protect the jury's ability to reach independent judgments.

Section III reviews selected cases which reveal judicial recognition of the …

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

UF Law Faculty Publications

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

UF Law Faculty Publications

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Is Conviction Irrelevant?, Elizabeth T. Lear

UF Law Faculty Publications

Since 1986, the country has been witness to a revolution in federal sentencing practice: indeterminate sentencing, dominated by discretion and focused on the rehabilitative prospects of the offender, has been replaced by guidelines infused with offense-based considerations. As sweeping as the change in sentencing procedure has been, the system retains troubling aspects of the former regime. The most controversial among these is the Guidelines' reliance on unadjudicated conduct to determine proper punishment levels.

This approach is a variation on “real offense” sentencing, which severs the punishment inquiry from the offense of conviction, focusing instead on an offender's "actual" conduct. Under …

Rights Held Hostage: Race, Ideology And The Peremptory Challenge, Kenneth B. Nunn

UF Law Faculty Publications

This Article addresses the Supreme Court's application of the Equal Protection Clause to the selection of juries in criminal trials. Focusing on Black-white relations, it takes the position that efforts to eliminate racial discrimination in jury selection are successful only to the extent that they also eliminate the result of the discrimination- racial subjugation of Blacks through the criminal justice process. By this measure, the Supreme Court's recent jury selection cases are an abject failure.

The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier

UF Law Faculty Publications

This note argues that, in developing the contemporary mandatory-permissive standard, the Supreme Court has misunderstood the effects of presumptions on juries. Presumptions that are ‘permissive’ in theory may nevertheless be ‘mandatory’ in fact, thereby leading some juries to convict regardless of their beliefs and inclinations. Thus, these legal presumptions may undermine the moral sense and political function of the jury.

Part I of this note shows, through doctrinal analysis, that the mandatory-permissive distinction is an anomaly in the Court's jurisprudence. Part II shows that this distinction is at variance with a substantial body of empirical social science research. This part …