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Back To The Future: Does Apprendi Bar A Legislature's Power To Shift The Burden Of Proof Away From The Prosecution By Labeling An Element Of A Traditional Crime As An Affirmative Defense?, Leslie Yalof Garfield
Back To The Future: Does Apprendi Bar A Legislature's Power To Shift The Burden Of Proof Away From The Prosecution By Labeling An Element Of A Traditional Crime As An Affirmative Defense?, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
This Article considers whether it would be sound to extend the Apprendi rule to affirmative defenses. Part II of this Article considers the historical foundation of the Due Process Clause and the evolution of the assignment of the burden of proof for affirmative defenses and sentencing factors. Part II also reviews Mullaney and its progeny through the most current case, Apprendi. Part III discusses the Court's model for determining which categories of statutory language constitute elements requiring proof beyond a reasonable doubt and which are "nonessential element[s] of an offense." Part IV evaluates whether it is appropriate to assign the …
Can A Model Penal Code Second Save The States From Themselves?, Paul H. Robinson, Michael T. Cahill
Can A Model Penal Code Second Save The States From Themselves?, Paul H. Robinson, Michael T. Cahill
All Faculty Scholarship
Other contributors to this Symposium suggest a variety of changes to the Model Penal Code that they think justify producing a Model Penal Code Second. We offer such suggestions elsewhere. We want to use this space to discuss a slightly different, but related, subject: the need for, and potential effect of, a Model Penal Code Second as a spur to reforming current American criminal codes. Probably the most important point we can contribute is to make clear that current American criminal codes are in serious trouble. About one-third of the states never adopted a modern criminal code during the codification …
Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller
Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller
Journal Articles
Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly …