Law Commons^™

Shadow Trial: Prosecutors In Ferguson Violated Our Right To An Open Criminal Justice System, Sonja R. West, Dahlia Lithwick

Popular Media

St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful …

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 …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson

All Faculty Scholarship

The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of …

The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.

Scholarly Works

A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …

Teaching The Methods Of White-Collar Practice: Investigatios, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

When Ijoined the George Washington University Law School [GW] faculty after practice as a federal prosecutor and white-collar criminal defense attorney, I quickly learned that a GW law student interested in exploring white-collar crime had a great many courses from which to choose. Several of my full-time colleagues teach courses that cover various topics relevant to white-collar crime, including a computer crimes course, a course in criminal tax litigation, and courses on anti-corruption in government contracting and the Foreign Corrupt Practices Act [FCPA]. GW is also fortunate to have a dedicated and talented adjunct faculty, which includes a former senior …

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

When Women Kill Newborns: The Rhetoric Of Vulnerability, Susan Ayres

Faculty Scholarship

This chapter explores feminist jurisprudence regarding women who commit acts of violence, focusing specifically on questions of agency in neonaticide (killing a newborn). A case study approach illustrates the debate in feminist theory between same-treatment and different-treatment of women as compared to men. While some feminist criminologists urge that women who kill must be viewed the same as men (as having agency and responsibility), other feminists question this approach and point out that women who commit crimes that intersect with family law receive disproportionately harsh treatment and should be treated differently than men.

This chapter contends that the paradox raised …

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Faculty Articles and Other Publications

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Is Psychological Research On Self-Control Relevant To Criminal Law?, Paul J. Litton

Faculty Publications

In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in …

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland

Journal Articles

This Article discusses the author's experience with effectively teaching a white collar crime course.

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …

Rethinking Domestic Violence, Rethinking Violence, Aya Gruber

Publications

No abstract provided.

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

The sexual assault of persons with mental disabilities (also described as cognitive, intellectual and developmental disabilities) occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most sexual assaults of women with mental disabilities. We argue that existing …

Kentucky Criminal Law Experts Call For Reform, Cortney E. Lollar

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Cortney Lollar discusses the Second Annual Forum on Criminal Law in the Commonwealth of Kentucky.

“White Collar” Crimes, Samuel W. Buell

Faculty Scholarship

In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

Lethal Injection Chaos Post-Baze, Deborah W. Denno

Faculty Scholarship

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little …

Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis of several works published by Robinson and various coauthors making the case for "empirical desert." Robinson's suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on …

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Publications

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

All Faculty Scholarship

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Commentary: Reflections On Remorse, Stephen J. Morse

All Faculty Scholarship

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.