Law Commons^™

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Sentencing: Capital Punishment, Jodi L. Short, Mark D. Spoto

Faculty Scholarship

No abstract provided.

The Theories Of Federal Habeas Corpus, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

"Other Crimes" Evidence In Sex Offense Cases, Roger C. Park, David P. Bryden

Faculty Scholarship

No abstract provided.

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants …

On The Moral Irrelevance Of Bodily Movements, George P. Fletcher

Faculty Scholarship

In the mess of confusions called Anglo-American criminal law, writers commonly refer to the "problem of punishing omissions." There is something untoward, they say, about imposing criminal liability on the bystander who could intervene to save a drowning child and fails to do so. Punishing acts in violation of the law is all right, but there is some special difficulty, never completely understood and clarified, about imposing liability for omissions.

The confusion about omissions has suffered unnecessary compounding by the organization of one of the leading casebooks on criminal law. Apparently not quite sure where to locate their cases on …

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Faculty Scholarship

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. The Supreme Court adopted this stringent standard in Chapman v. California to fulfill the federal …

Fifth Amendment Compelled Statements: Modeling The Contours Of Their Protected Scope, Kate Bloch

Faculty Scholarship

No abstract provided.

Is Electrocution An Unconstitutional Method Of Execution? The Engineering Of Death Over The Century, Deborah W. Denno

Faculty Scholarship

This Article provides the Eighth Amendment analysis of electrocution that the courts thus far have not approached. The analysis has two parts. The first inquires whether, according to available scientific evidence, electrocution amounts to cruel and unusual punishment even if it is administered as planned. The second inquires whether, in light of the frequency with which electrocutions are botched, continuing the practice amounts to cruel and unusual punishment even if the properly administered electrocution would not.

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Bruce A. Green, Daniel C. Richman

Faculty Scholarship

No abstract provided.

The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial Discretion, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Categorical And Individualized Rights-Ordering On Federal Habeas Corpus, Daniel B. Yeager

Faculty Scholarship

This Article criticizes the Supreme Court's treatment of both individualized and categorical bases of relief on federal habeas corpus. Part I notes the Court's trend toward trimming the process that is due in criminal and prisoner litigation generally. This trend may explain the drop in process on habeas as well, but generally declining process cannot explain which rights, if any, should survive the decline. That would require our weighting, if not reconciling, accuracy and dignitary norms, which is the subject of Part II. In Part II, I examine Withrow v Williams, a case from the Court's 1992 Term, which, for …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch

Faculty Scholarship

We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.

The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …