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Columbia Law School

Columbia Law Review

Criminal Law

Articles 1 - 13 of 13

Full-Text Articles in Law

Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman Jan 2017

Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman

Faculty Scholarship

On September 7, 2016, four of the nation’s newspapers of record weighed in on the connected crises in crime and policing. The New York Times revealed the tensions between the Mayor’s office in Chicago and several community and professional groups over a plan to overhaul Chicago’s police disciplinary board – a plan developed in the wake of the shooting of an unarmed teenager, Laquan McDonald, and the release of a video of that killing. The Wall Street Journal related a vigorous defense of New York City’s “broken windows” policing strategy – a strategy that has been a recurring ...


Beyond Protection, Philip A. Hamburger Jan 2009

Beyond Protection, Philip A. Hamburger

Faculty Scholarship

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly dificult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection.

This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no ...


Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman Jan 2008

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left ...


Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman Jan 2007

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it ...


Crime And Punishment In Taxation: Deceit, Deterrence, And The Self-Adjusting Penalty, Alex Raskolnikov Jan 2006

Crime And Punishment In Taxation: Deceit, Deterrence, And The Self-Adjusting Penalty, Alex Raskolnikov

Faculty Scholarship

Avoidance and evasion continue to frustrate the government's efforts to collect much-needed tax revenues. This Article articulates one of the reasons for this lack of success and proposes a new type of penalty that would strengthen tax enforcement while improving efficiency. Economic analysis of deterrence suggests that rational taxpayers choose avoidance and evasion strategies based on expected rather than nominal sanctions. I argue that many taxpayers do just that. Because the probability of detection varies dramatically among different items on a tax return while nominal penalties do not take the likelihood of detection into account, expected penalties for inconspicuous ...


Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch Jan 2005

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state ...


Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz Jan 2005

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies against ...


The Overproduction Of Death, James S. Liebman Jan 2000

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors (who generate more death ...


A Reply To Michael Goldsmith, Gerard E. Lynch Jan 1988

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.


Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch Jan 1987

Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch

Faculty Scholarship

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of ...


Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch Jan 1987

Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch

Faculty Scholarship

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.

RICO's complexity has attracted several efforts to ...


A Transaction Theory Of Crime?, George P. Fletcher Jan 1985

A Transaction Theory Of Crime?, George P. Fletcher

Faculty Scholarship

The most difficult questions are foundational. It is no surprise then that one of the most puzzling questions in criminal law frames the whole inquiry: what is the nature of crime? Positivists dispose of the question easily. If the law is whatever the legislature and courts say it is, then crime is whatever these authoritative agencies designate as crime. The question becomes more interesting, however, if we regard crime as a prepositive concept, a concept that exists logically prior to the positive law. It is not that conduct is criminal because the legislature speaks; rather the legislature speaks because conduct ...


Delay And The Dynamics Of Personal Injury Litigation, Maurice Rosenberg, Michael I. Sovern Jan 1959

Delay And The Dynamics Of Personal Injury Litigation, Maurice Rosenberg, Michael I. Sovern

Faculty Scholarship

Delayed justice is one of man's stubborn maladies. Just as stubborn is' man himself, and this has led him to persist in prescribing for the delay affliction instead of trying to understand it. Today there are still those who believe that solution can precede understanding and that what this country needs is a good five-cent "cure" for delay. Happily, others have recognized the need to put first things first. All through the country more and more groups are at work methodically getting the facts that are essential to understanding what is wrong and what is needed. The Columbia University ...