Law Commons^™

Race And Punishment: Demographic Disparities And Patterns In The Blue Earth County Court System, Aaron Guerdet, Alyssa Haugly, Kelsey Mischke

Public Sociology Publications and Projects

This study examines potential race and gender disparities in sentencing decisions in Blue Earth County, MN courts. Using qualitative field observations and a grounded theory approach, authors observed and analyzed court proceedings. In total, three researchers conducted seven weeks of observations; the final sample consisted of 95 observed court sessions, 50 of them being closed court cases. Results show little discrepancy in gender and charges and sentencing rates. Though there are racial discrepancies in charges that suggest discriminatory policing decisions, the data shows that minority members are being sentenced at a similar rate compared to white defendants. In all cases …

Newsroom: Horwitz On The Role Of Grand Juries, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

What We Should Learn From Garner And Ferguson Cases, Jeffrey Bellin

Popular Media

No abstract provided.

Determinants Of The Irish Bail System Before And After 1997., Adrian Berski

Reports

Bail can be defined as:

The setting at liberty of an accused person upon others becoming sureties for the accused at his trail. The decision to admit a person to bail is judicial matter and, consequently, the court cannot delegate the exercise of this judicial power to an administrative official^[1].

According to the above definition it should be emphasized that an accused person has to ensure the State that he/she will return to the court proceedings or Garda Síochána Station at the particular time. It is imperative that bail is established on the fact that a criminal is …

The Sentencing Of "Couriers" Under Section 33b Of The Misuse Of Drugs Act: Pp V Chum Tat Suan [2014] Sgca 59, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

Sections 33B(1)–(2) of the Misuse of Drugs Act (“the Act”)1 allow for a person who commits an offence under ss 5(1) or 7 of the Act to be sentenced to life imprisonment and caning instead of death if two conditions are met.

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 …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

A First Look At The Plea Deal Experiences Of Juveniles Tried In Adult Court, Tarika Daftary-Kapur, Tina Zottoli

Department of Justice Studies Faculty Scholarship and Creative Works

While there is a large body of research on the legal capacities of adolescents, this research largely has neglected the plea-deal context. To learn about adolescents’ understanding of the plea process and their appreciation of the short- and long-term consequences of accepting a plea deal, we conducted interviews with 40 juveniles who were offered plea deals in adult criminal court. Participants displayed a limited understanding of the plea process were not fully aware of their legal options and appeared to be overly influenced by the short-term benefits associated with accepting their plea deals. Limited contact with attorneys may have contributed …

Empirical Law And Economics, Jonah B. Gelbach, Jonathan Klick

All Faculty Scholarship

Empirical work has grown in importance in law and economics. This growth coincides with improvements in research designs in empirical microeconomics more generally. In this essay, we provide a stylized discussion of some trends over the last two or three decades, linking the credibility revolution in empirical micro to the ascendancy of empirical work in law and economics. We then provide some methodological observations about a number of commonly used approaches to estimating policy effects. The literature on the economics of crime and criminal procedure illustrates the ways in which many of these techniques have been used successfully. Other fields, …

Summary Of Watson V. State, 130 Nev. Adv. Op. 76, Lindsay Liddell

Nevada Supreme Court Summaries

The Court determined that (1) a Batson objection to peremptory strikes should be analyzed with reference to the amount of allegedly targeted-group members within the venire; and (2) that a jury instruction is not issued in error when there was a reasonable likelihood that the jury did not understand the instruction incorrectly, even if the rule does not comprehensively explain the underlying doctrine, so long as it accurately states the law.

Femicide In Bolivia After Law 348, Adán Martínez

Independent Study Project (ISP) Collection

This project explores the concept of femicide from a unique perspective, by analyzing the effect that Law #348: The Internal Law to Guarantee Women a Life Without Violence after a year that it passed during the Morales' administration. I examine two crucial questions to this study: 1) How do we explain the paradox that although this law has passed, today we see an increase in the number of femicides in Bolivia? 2) What are the obstacles that prevent that application of law 348 3) What can we do to put a stop to femicides? I demonstrate that several factors like …

Why Full Implementation Is Long Overdue, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

In 1980, the American Bar Association (ABA) promulgated a far-reaching comprehensive body of Juvenile Justice Standards, thereby providing a blueprint for the reform of a system that had serious deficiencies. Developed in partnership with the Institute of Judicial Administration (IJA) at New York University, the standards address the entire juvenile justice continuum, from police handling and intake to adjudication, disposition, juvenile corrections, and ancillary functions. Approximately 300 professionals collaborated for a decade to produce the 23 volumes approved by the ABA House of Delegates.

To this day, the standards remain relevant and reformist. Several have been implemented in whole or …

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …

Human Rights Infringements In Brazil’S Penitentiary System Understood Through Access To Healthcare, Sara Morris

Independent Study Project (ISP) Collection

Brazil has a reputation of being home to some of the worst penitentiary conditions worldwide, eventually leading the United Nations to make an appeal to the Brazilian government in 2003 to analyze their systems and make necessary improvements. The poor conditions and lack of access to legal counsel, living space, and specifically healthcare, cause riots and uprisings within prisons that in the past have lead to death of prisoners and guards. Prisons serve a very specific purpose in society, and according to most social theorists that is to reform, not to torture. In Brazil there is no capital punishment, so …

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Substantive Habeas, Kimberly A. Thomas

Articles

Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …

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

Articles & Book Chapters

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 …

Forced Decryption As Equilibrium—Why It’S Constitutional And How Riley Matters, Dan Terzian

NULR Online

No abstract provided.

An End To Silence: Inmate's Handbook On Identifying And Addressing Sexual Abuse, 3rd Edition, Brenda V. Smith

Reports

"Though many correctional agencies have taken steps to comply with PREA standards and create safer environments for individuals in their care, inmates in custody still face sexual abuse and harassment by staff or other inmates. Staff and inmates still report problems identifying those at risk of sexual abuse, reporting sexual abuse, and holding those responsible for sexual abuse accountable. This publication is a tool for educating inmates about legal and other mechanisms, including the Prison Rape Elimination Act (PREA), that can provide protection and redress from sexual abuse in custodial settings" (p. 5). Sections of this handbook are: introduction; what …

The Speedy Trial Right And National Security Detentions: Critical Comments On United States V. Ghailani, Anthony O'Rourke

Journal Articles

This article reviews the decision of the United States Court of Appeals for the Second Circuit to uphold the conviction and sentence of Ahmed Khalfan Ghailani, the sole Guantánamo detainee to have been transferred to the United States for trial. Ghailani was captured nearly five years before his arraignment and argued that his constitutional right to a speedy trial was violated by the delay. The article contends that, in rejecting Ghailani’s argument, the Second Circuit distorted the doctrinal framework governing speedy trial claims and mischaracterized the interests that the speedy trial right is intended to protect. The article also explores …

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Summary Of Jones V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 53, Kylee Gloekner

Nevada Supreme Court Summaries

The Court determined (1) whether a criminal defendant’s access to the courts can be restricted by the district court when he or she is challenging a judgment of conviction and sentence or the computation of time served under a judgment of conviction; and (2) whether there is an established approach courts should take when restricting the access.

Sentencing Inequality Versus Sentencing Injustice, Melanie D. Wilson

Scholarly Articles

Women lag behind men in pay for equal work and in positions of prestigious employment, such as chief executive officers at Fortune 500 companies and presidents of colleges and universities. Women also suffer conscious and subconscious negative bias from both men and women in positions to evaluate an applicant's capabilities and potential, making it less likely that an employer or mentor will choose a woman instead of a man. In contrast to these and many other contexts, our federal criminal justice system regularly favors women over men. Empirical studies show that this lenient treatment begins with prosecutors and law enforcement …

Abuse And Potential Misuse Of Resources In U.S. Terrorism Prosecutions, Human Rights Institute

Human Rights Institute

New York, July 21, 2014 – Prosecutions of American Muslims for terrorism offenses are rife with abuse, the Columbia Human Rights Institute says in a new report released today and produced jointly with Human Rights Watch. The report, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions, examines 27 federal terrorism cases, some involving aggressive sting operations and others amounting to overbroad prosecutions for material support of terrorism. It also documents the significant human cost of solitary confinement and other restrictive conditions of confinement in these cases.