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Series

SSRN

Columbia Law School

Criminal Law

2008

Articles 1 - 8 of 8

Full-Text Articles in Law

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 ...


Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman Jan 2008

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court." This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what ...


Symposium On Pursuing Racial Fairness In Criminal Justice: Twenty Years After Mccleskey V. Kemp, Jeffrey Fagan, Mukul A. Bakhshi Jan 2008

Symposium On Pursuing Racial Fairness In Criminal Justice: Twenty Years After Mccleskey V. Kemp, Jeffrey Fagan, Mukul A. Bakhshi

Faculty Scholarship

Last year marked the twentieth anniversary of the U.S. Supreme Court's decision in McCleskey v. Kemp, a case whose ramifications for the pursuit of racial equality within criminal justice are still felt today. McCleskey set an impossibly high bar for constitutionally-based challenges seeking fundamental racial fairness in capital punishment. The McCleskey decision strengthened a jurisprudential climate that shifted and increased the burden onto defendants seeking constitutional relief from discriminatory and biased decisions at every step of the criminal justice process, from arrest to conviction and punishment. The McCleskey court articulated a crime-control rationale for tolerance of error and ...


Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan Jan 2008

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates over three decades spurred legal mobilizations within many state legislatures to vastly expand the transfer of adolescent criminal offenders under the age of eighteen to the jurisdiction of the criminal court. The proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Both the boundaries for transfer and mechanisms to effect it were redesigned. This redrawing of the boundary between the juvenile and adult justice systems resulted in a wholesale movement of large numbers of juveniles into the adult system, while stripping juvenile court judges of the ...


Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa Jan 2008

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense ...


Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman Jan 2008

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This article takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Gonzales discovered that U.S. Attorneys can bite back – at least when Congress wants them to. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy and individualized judgment merge. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing ...


Rethinking Juvenile Justice, Elizabeth S. Scott, Laurence Steinberg Jan 2008

Rethinking Juvenile Justice, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a ...


Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt Jan 2008

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international ...