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2006

Criminal Law

Institution
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Articles 1 - 30 of 182

Full-Text Articles in Law

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson Dec 2006

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's ...


Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert Sloane Dec 2006

Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert Sloane

Faculty Scholarship

Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part ...


Summary Of Johnson V. State, Nev. Adv. Op. No. 113, Jason Ray Dec 2006

Summary Of Johnson V. State, Nev. Adv. Op. No. 113, Jason Ray

Nevada Supreme Court Summaries

Appeal from a death sentence and conviction by jury of four counts of first degree murder with the use of a deadly weapon, among other crimes, after a death sentence entered by a three judge panel was appealed and vacated.


Summary Of Santana V. State, 122 Nev. Adv. Op. No. 121, Robert Stephens Dec 2006

Summary Of Santana V. State, 122 Nev. Adv. Op. No. 121, Robert Stephens

Nevada Supreme Court Summaries

Appeal from a conviction in the Eighth Judicial District Court of 19 counts of coercion resulting in five consecutive life sentences without the possibility of parole and fourteen concurrently running life sentences. Appellant argues that the jury instructions did not instruct the jury to apply the reasonable person test and therefore seeks a new trial.


Summary Of Summers V. State, Nev. Adv. Op. No. 112, Jason Ray Dec 2006

Summary Of Summers V. State, Nev. Adv. Op. No. 112, Jason Ray

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for first-degree murder with the use of a deadly weapon, and assault with the use of a deadly weapon, attempted murder with the use of a deadly weapon, and assault with the use of a deadly weapon, and from sentences of life in prison without the possibility of parole.


Summary Of Thomas V. State, 122 Nev. Adv. Op. 114, 148 P.3d 727, James Robertson Dec 2006

Summary Of Thomas V. State, 122 Nev. Adv. Op. 114, 148 P.3d 727, James Robertson

Nevada Supreme Court Summaries

Appeal from a death sentence following a second penalty hearing conducted pursuant to a remand by the Nevada Supreme Court.


Summary Of Rosas V. State, Nev. Adv. Op. No. 106, Sherry Moore Dec 2006

Summary Of Rosas V. State, Nev. Adv. Op. No. 106, Sherry Moore

Nevada Supreme Court Summaries

The district court convicted Appellant of committing battery upon an officer and rejected Appellant’s proffered jury instruction on the crime resisting a public officer, a lesser-included offense of battery upon an officer.s


Summary Of Mitchell V. State, 122 Nev. Adv. Op. No. 107, Aubree Nielsen Dec 2006

Summary Of Mitchell V. State, 122 Nev. Adv. Op. No. 107, Aubree Nielsen

Nevada Supreme Court Summaries

Appeal from the denial of a post-conviction petition for a writ of habeas corpus in a criminal case.


Book Review: The I Chong: Meditations From The Joint (2006), Donald E. Wilkes Jr. Dec 2006

Book Review: The I Chong: Meditations From The Joint (2006), Donald E. Wilkes Jr.

Popular Media

Book Review of THE I CHONG: MEDITATIONS FROM THE JOINT, by Tommy Chong (NY: Simon Spotlight Entertainment, 2006).


Summary Of Calvin V. State, 122 Nev. Adv. Op. 100, Michelle L'Hommedieu Dec 2006

Summary Of Calvin V. State, 122 Nev. Adv. Op. 100, Michelle L'Hommedieu

Nevada Supreme Court Summaries

NRS 178.400, Nevada's standard for a defendant's competency to stand trial, conforms to the standard set out by the United States Supreme Court in Dusky v. United States.


Summary Of State V. Rincon, 122 Nev. Adv. Op. 99, Michelle L'Hommedieu Dec 2006

Summary Of State V. Rincon, 122 Nev. Adv. Op. 99, Michelle L'Hommedieu

Nevada Supreme Court Summaries

A motorist is driving below the speed limit is, by itself, insufficient to give rise to a reasonable suspicion of driving while intoxicated warranting an investigative stop. While reasonable suspicion is not a stringent standard, it requires more than a mere observation that a motorist is driving slowly. There must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises justifying an investigative stop. Where no reasonable suspicion exists, an inquiry stop may nonetheless be justified under the community caretaking doctrine when a police officer has an objectively reasonable belief that a slow driver is in ...


Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook Dec 2006

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court ...


Victims And Prison Release: A Modest Proposal, Erin O'Hara O'Connor Dec 2006

Victims And Prison Release: A Modest Proposal, Erin O'Hara O'Connor

Scholarly Publications

No abstract provided.


Summary Of Estes V. State, 122 Nev. Adv. Op. No. 96, Michael Hammer Nov 2006

Summary Of Estes V. State, 122 Nev. Adv. Op. No. 96, Michael Hammer

Nevada Supreme Court Summaries

Appeal from a conviction, by jury, of two counts of preventing or dissuading a person from testifying or producing evidence, one count of first-degree kidnapping, two counts of battery with intent to commit a crime, six counts of sexual assault of a minor under 14, two counts of coercion, and two counts of lewdness with a child under 14. The primary issue on appeal was the admissibility of evidence gathered while the Appellant was committed to a mental institution for the purpose of evaluating competency to stand trial.


Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy Nov 2006

Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy

Boston College Law School Faculty Papers

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and ...


Remembering Welsh White, John Burkoff Nov 2006

Remembering Welsh White, John Burkoff

University of Pittsburgh School of Law Working Paper Series

This paper was an adaptation from a eulogy for Welsh White, an esteemed Criminal Procedure professor at the University of Pittsburgh School of Law.


Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer Nov 2006

Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer

Faculty Scholarship at Penn Law

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified ...


The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson Nov 2006

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Working Paper Series

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage ...


Constitutional Collectivism And Ex-Offender Residence Exclusion Laws, Wayne A. Logan Nov 2006

Constitutional Collectivism And Ex-Offender Residence Exclusion Laws, Wayne A. Logan

Scholarly Publications

The U.S. has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the “the peoples of the several states must sink or swim together.” The ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


Justice For The Vulnerable? Debating The Relationship Between Aboriginal People And Australian Criminal Justice, Mark Findlay Nov 2006

Justice For The Vulnerable? Debating The Relationship Between Aboriginal People And Australian Criminal Justice, Mark Findlay

Research Collection School Of Law

As much as it might be said that a nation is judged by the way it treats its most disadvantaged citizens, the reality of criminal justice is dependent on its relations with the vulnerable. On any measure Australian criminal justice is indicted by the overrepresentation of Aboriginal people in its domain.


Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas Oct 2006

Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas

Faculty Scholarship at Penn Law

This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge ...


Civil Due Process, Criminal Due Process, Niki Kuckes Oct 2006

Civil Due Process, Criminal Due Process, Niki Kuckes

Law Faculty Scholarship

No abstract provided.


The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding Oct 2006

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding

Working Paper Series

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. “Irresistible impulse” (or “control”) tests, on the other hand, provide an insanity defense to those who ...


Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam Kolber Oct 2006

Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam Kolber

Faculty Scholarship

No abstract provided.


Victim Impact Evidence In Federal Capital Trials, Wayne A. Logan Oct 2006

Victim Impact Evidence In Federal Capital Trials, Wayne A. Logan

Scholarly Publications

Fifteen years ago, in Payne v. Tennessee, the Supreme Court lifted its prohibition on the admission of victim impact evidence (VIE) in the penalty phase of capital trials. According to the Court, admitting evidence on the personal traits of individual murder victims and the toll associated with their killings at once properly allowed the government to show the “uniqueness” of victims, thus counterbalancing defendants’ largely unfettered right to adduce mitigation evidence, and permitted the sentencing authority to under-stand the “specific harm” caused by the murder. In the wake of Payne, Congress authorized use of VIE as a nonstatutory aggravating factor ...


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey Sep 2006

What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey

Cornell Law Faculty Publications

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware ...


The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf Aug 2006

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf

Student Scholarship Papers

This Article examines the constitutional status of suspicionless searches and seizures of groups—an exceedingly important question in an age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review. First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in the political process, and there is no reason why the Fourth Amendment should not do ...


The Impact Of Residency Restrictions On Sex Offenders And Correctional Management Practices: A Literature Review, California Research Bureau Aug 2006

The Impact Of Residency Restrictions On Sex Offenders And Correctional Management Practices: A Literature Review, California Research Bureau

California Agencies

No abstract provided.