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Full-Text Articles in Law

Undue Influence: A Prosecutor’S Role In Parole Proceedings, R. Michael Cassidy Apr 2019

Undue Influence: A Prosecutor’S Role In Parole Proceedings, R. Michael Cassidy

Boston College Law School Faculty Papers

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings. He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information ...


Sixth Amendment Sentencing After Hurst, Carissa B. Hessick, W. W. Berry Apr 2019

Sixth Amendment Sentencing After Hurst, Carissa B. Hessick, W. W. Berry

Faculty Publications

The U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded, invalidating sentencing practices across the country, and at times it has contracted, allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding ...


Disrupting The Androcentric Prison System, Amber Hanke Apr 2019

Disrupting The Androcentric Prison System, Amber Hanke

Audre Lorde Writing Prize

No abstract provided.


Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson Apr 2019

Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized ...


Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon Mar 2019

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration ...


Is Supervised Release Tolled Retrospective To The Start Of An Unrelated Detention If The Defendant Is Credited With Time Served Upon Sentencing For The New Offense?, Nora V. Demleitner Feb 2019

Is Supervised Release Tolled Retrospective To The Start Of An Unrelated Detention If The Defendant Is Credited With Time Served Upon Sentencing For The New Offense?, Nora V. Demleitner

Scholarly Articles

The district court sentenced Jason Mont for violating his supervised release conditions after a state conviction and sentence that credited him for time in pretrial detention served while he was on supervised release. Mont challenges the court’s exercise of jurisdiction, arguing that 18 U.S.C. § 3624(e) does not permit the court to reach backward to find that supervised release was tolled once he received credit for his pretrial detention at sentencing. Petitioner and respondent disagree about the interpretation of the language and structure of Section 3624(e). While the government relies heavily on the purpose of supervised ...


The Place Of The People In Criminal Procedure, Jocelyn Simonson Feb 2019

The Place Of The People In Criminal Procedure, Jocelyn Simonson

Faculty Scholarship

No abstract provided.


The New Amy, Vicky, And Andy Act: A Positive Step Towards Full Restitution For Child Pornography Victims, Paul Cassell, James R. Marsh Feb 2019

The New Amy, Vicky, And Andy Act: A Positive Step Towards Full Restitution For Child Pornography Victims, Paul Cassell, James R. Marsh

Utah Law Faculty Scholarship

In this article, we review some of the valuable steps forward found in the AVAA, as well as the work that remains to be done. But in closing, it may be useful to remember that the legal issues swirling around restitution decisions have real world consequences, both for the defendants who must pay the restitution awards and the victims who need and deserve compensation. As between these two groups, however, the equities tip decisively in favor of victims. To be sure, large restitution awards have financial consequences for criminal defendants. But the stark fact remains that criminals have a choice ...


Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane Jan 2019

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how ...


Privatizing Criminal Procedure, John D. King Jan 2019

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...


Felon Disenfranchisement, Nora V. Demleitner Jan 2019

Felon Disenfranchisement, Nora V. Demleitner

Scholarly Articles

In its broadest forms, felon disenfranchisement excludes even individuals who have long been rehabilitated. Yet they are still treated only as partial citizens. Automatic, long-term restrictions on the franchise are unnecessarily exclusionary. More importantly, they hinder reentry and rehabilitation. Citizens returning from imprisonment, who can vote, have lower rates of recidivism than those who are barred from voting. Re-enfranchisement signals a return to citizenship. It advances and confirms a returning citizen’s full participatory rights. Ultimately, that means we recognize these individuals as having lived up to the expectation of rehabilitation rather than leaving them feeling defeated.


From Timbuktu To The Hague And Beyond: The War Crime Of Intentionally Attacking Cultural Property, Mark A. Drumbl Jan 2019

From Timbuktu To The Hague And Beyond: The War Crime Of Intentionally Attacking Cultural Property, Mark A. Drumbl

Scholarly Articles

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature.What might the work product of the ICC in the Al Mahdi proceedings ç and international criminal law more generally ç add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that ...


Will The Supreme Court Rein In “Excessive Fines” And Forfeitures? Don’T Rely On Timbs V. Indiana, Nora V. Demleitner Jan 2019

Will The Supreme Court Rein In “Excessive Fines” And Forfeitures? Don’T Rely On Timbs V. Indiana, Nora V. Demleitner

Scholarly Articles

The U.S. Supreme Court’s decision in Timbs v. Indiana buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines and forfeitures. One commentator deemed it “a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.” That may have been an overstatement. The Court seems disinclined to fill the term proportionality with robust meaning or wrestle with Eighth Amendment challenges to fines and fees. Those steps would be required for the Excessive Fines Clause to function as an effective ...


Saving Justice: Why Sentencing Errors Fall Within The Savings Clause, 28 U.S.C. § 2255(E), Brandon Hasbrouck Jan 2019

Saving Justice: Why Sentencing Errors Fall Within The Savings Clause, 28 U.S.C. § 2255(E), Brandon Hasbrouck

Scholarly Articles

Notwithstanding the extent to which scholars, lawyers, and community organizers are broadening their contestations of the criminal justice system, they have paid insufficient attention to federal sentencing regimes. Part of the reason for this is that sentencing is a “back-end” criminal justice problem and much of our nation’s focus on criminal justice issues privileges “front-end” problems like policing. Another explanation might be that the rules governing sentencing are complex and cannot be easily rearticulated in the form of political soundbites. Yet sentencing regimes are a criminal justice domain in which inequalities abound—and in ways that raise profound questions ...


Interrogating Police Officers, Stephen Rushin, Atticus Deprospo Jan 2019

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


The Justice System Is Criminal, Raven Delfina Otero-Symphony Jan 2019

The Justice System Is Criminal, Raven Delfina Otero-Symphony

2020 Award Winners

No abstract provided.


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler Jan 2019

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler

All Faculty Scholarship

This article explores how the death penalty and the indefinite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats.


Police Disciplinary Appeals, Stephen Rushin Jan 2019

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports Jan 2019

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

Journal Articles

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law ...


Incapacitating Errors: Sentencing And The Science Of Change, M. Eve Hanan Jan 2019

Incapacitating Errors: Sentencing And The Science Of Change, M. Eve Hanan

Scholarly Works

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a ...


Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland Jan 2019

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

Faculty Scholarship at Penn Law

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the ...


Discipline And Policing, Kate Levine Jan 2019

Discipline And Policing, Kate Levine

Faculty Publications

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency ...


Defense Perspectives On Fairness And Efficiency At The International Criminal Court, Jenia I. Turner Jan 2019

Defense Perspectives On Fairness And Efficiency At The International Criminal Court, Jenia I. Turner

Faculty Scholarship

Over the last several years, states parties of the International Criminal Court (ICC) have put increasing pressure on the court to become more efficient. Proceedings are seen as unduly slow, and judges have been urged to rein in the parties and expedite the process.

The emphasis on efficiency can advance important goals of the ICC. It can help ensure defendants’ right to a speedy trial, promote victims’ interests in closure, and allow the court to process more cases with limited resources. But as the experience of earlier international criminal tribunals shows, an unrelenting pursuit of efficiency could also interfere with ...


The Purposes And Functions Of Exclusionary Rules: A Comparative Overview, Jenia I. Turner Jan 2019

The Purposes And Functions Of Exclusionary Rules: A Comparative Overview, Jenia I. Turner

Faculty Scholarship

The chapter analyzes the rationales for excluding relevant evidence with the aim of establishing the ideal type of exclusion system for each rationale. The authors then review to what extent individual legal systems have actually altered their legal rules in accordance with these ideal systems. An investigation into whether or not there are any consistent relationships between the ideal systems and proclaimed rationales is conducted. The structure of various exclusionary rules is also explored, as are other factors that may influence the law and practical application of such rules.


Managing Digital Discovery In Criminal Cases, Jenia I. Turner Jan 2019

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Faculty Scholarship

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information ...


A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt Jan 2019

A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

Articles & Chapters

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of ...


Prosecuting In The Shadow Of The Jury, Anna Offit Jan 2019

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Scholarship

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point ...


Mens Rea Reform And Its Discontents, Benjamin Levin Jan 2019

Mens Rea Reform And Its Discontents, Benjamin Levin

Articles

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory ...