Law Commons^™

Uncovering The Legislative Histories Of The Early Mail Fraud Statutes: The Origin Of Federal Auxiliary Crimes Jurisdiction, Norman Abrams

Utah Law Review

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime, that is, a crime that does not protect direct federal interests against harm. Rather, it functions as an auxiliary to state crime enforcement. In the almost 150 years since Congress enacted the mail fraud statute, federal auxiliary crimes have proliferated and have become the most important part of federal criminal jurisdiction—so that, today, they largely duplicate state crimes. It is important to know how this form of federal criminal jurisdiction originated.

Mail fraud is a crime that scholars, judges, and lawyers have viewed as …

Justice Delayed Is Not Justice Denied: Considerations And Concerns For Addressing The National Sexual Assault Kit Backlog, Bryan Schwartz

University of Cincinnati Law Review

Across the nation, many states have started clearing their backlogs of thousands of untested sexual assault kits. Most states have also implemented legislative and procedural safeguards to improve sexual assault investigation and prevent future backlogs. This article first posits that states seeking to address their sexual assault kit backlog should consider Nevada’s approach, which successfully eliminated the backlog and simultaneously reformed its sexual assault investigation procedures. However, this article primarily argues that, without allocating reoccurring future funding to support the recent legislative and procedural changes, states run the risk of future backlogs of sexual assault cases. State legislatures and policymakers …

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …

The Trial Preparation Procedures–Criminal, William Rhee, L. Richard Walker

Law Faculty Scholarship

In an effort to provide scholarship immediately useful to the criminal trial advocate, this article proposes a detailed systems workflow to plan and coordinate preparing for federal criminal trials called the Trial Preparation Procedures–Criminal (or "TrialPrepPro–Criminal" for short). The TrialPrepPro–Criminal upon the Trial Preparation Procedures-Civil, expounded in an earlier article.

Although there is an abundance of anecdotal "learning from doing" trial preparation guidance, empirically testable "learning about doing" trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro are modeled after the battle-proven military decision-making process used, with modifications, by all U.S. military services, …

Who Gets To Make A Living? Street Vending In America, Joseph Pileri

Articles in Law Reviews & Other Academic Journals

Street vending has long provided those at the margins of American society with the opportunity for economic advancement. A key segment of the informal economy, street vending has low barriers of entry and attracts entrepreneurs who lack the resources, ability, or desire to start brick-and-mortar businesses or work for someone else. Street vending also contributes to the vitality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country criminalize vending by treating the violation of street vending regulations as a criminal offense. Recent high-profile vendor arrests in New York City and Washington, DC …

Explaining Florida Man, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

"Florida Man" is a popular cultural phenomenon in which journalists report on Floridians'unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people's attention nationwide. Florida man is one of the latest unique trends to come from the Sunshine State and contributes to Florida's reputation as a quirky place.

Explanations for Florida Man center on Florida'sPublic Records Law, which is known as one of the most expansive open records laws in the country. All states and the District …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Legal Fictions And Moral Reasoning: Capital Punishment And The Mentally Retarded Defendant After Penry V. Johnson, Timothy S. Hall

Akron Law Review

The relationship between mental health law and criminal law is disturbing in both its substance and its scope. If it is true that the task of lawyering is that of enabling the client to have his story told, it is certainly true that nowhere are clients' stories more complex than in the intersection between criminal law and mental health law. This Article involves one such intersection: the relationship between mental retardation and capital punishment. Johnny Paul Penry is a convicted rapist and murderer on death row in Texas. He is a survivor of long-term child abuse and organic brain damage …

Life After Sentence Of Death: What Becomes Of Individuals Under Sentence Of Death After Capital Punishment Legislation Is Repealed Or Invalidated, James R. Acker, Brian W. Stull

Akron Law Review

More than 2500 individuals are now under sentence of death in the United States. At the same time, multiple indicators—public opinion polls, legislative repeal and judicial invalidation of deathpenalty laws, the reduction in new death sentences, and infrequency of executions—suggest that support for capital punishment has significantly eroded. As jurisdictions abandon or consider eliminating the death-penalty, the fate of prisoners on death row—whether their death sentences, valid when imposed, should be carried out or whether these individuals should instead be spared execution—looms as contentious political and legal issues, fraught with complex philosophical, penological, and constitutional questions. This article presents a …

Sentencing By Ambush: An Insider's Perspective On Plea Bargaining Reform, Justice Michael P. Donnelly

Akron Law Review

The vast majority of cases in our state criminal justice system are resolved not by proceeding to trial but through negotiated plea agreements. These are contracts between the government and the accused in which both sides are negotiating for some form of benefit in the ultimate resolution. In this article, Justice Donnelly exposes what he sees as a flaw in the system in the manner in which trial court judges oversee this process of negotiation. In a significant number of cases, the state induces defendants to enter into a guilty plea with no certain sentence, amounting to an illusory agreement …

Keynote Prosecutors And Race: Responsibility And Accountability, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

Thank you so much, Madeline. I want to thank the Rutgers University Law Review and the Rutgers Center on Criminal Justice, Youth Rights, and Race for inviting me to participate in this very important symposium on Prosecutors, Power, and Racial Justice: Building an Anti-Racist Prosecutorial System. I want to give a special thanks to Professor Cohen and Gisselly, and all of the students who worked so hard to put the symposium together. It's such an important topic. I appreciate your interest, and [I] am particularly thankful to all of you [who] are here on this Friday afternoon to talk about …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

Stepping Towards Justice: The Case For The Illinois Constitution Requiring More Protection Than Not Falling Below “Cruel And Unusual” Punishment, Andrea D. Lyon, Hannah J. Brooks

Northern Illinois University Law Review

In these tumultuous times, when our nation is trying to not only navigate a global pandemic, but also actually reckon with its long history of institutional racism, mass incarceration, and devastation of poor communities and communities of color, the cry for criminal justice reform is loud and getting louder, particularly regarding sentencing, and it is time for Illinois to require its courts to commit to doing more in accordance with our constitution. In this article, the authors examine the legislative and constitutional history of Illinois, the effects of a series of recent decisions made in the context of the sentencing …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Racial Disparities Inherent In America's Fragmented Parole System, Olinda Moyd

Articles in Law Reviews & Other Academic Journals

This global health crisis has proven to be an equal opportunity discloser, in that it has spotlighted the layers of inequities and racial disparities so engrained in America’s structural systems. Nowhere else is this more evident than in our criminal legal system, where justice is often austere for African Americans. The ghastly statistics of the number of people confined in jails and prisons do not fully capture the scope and extensive reach of those swept up in our legal system. It is estimated that about 4-5 million people are on community supervision, to include probation and parole, which far outnumber …

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past understandings …

The Role Of Law In The Legalization Of Criminality, Rana Aloutor

UAEU Law Journal

It is understood that criminal law is based on the principle of legality; the law determines the criminalization and punishment. The question arises: can law play a role in allowing criminality? What is that role? This research is to address this topic and answer the question within the scientific method depends on a comparative study between a number of criminal legislations in the Arab world and French law then indicate the reasons for private and public justification. The law has taken a very large meaning in the decriminalization of offences and their justification. This meant that the double concept of …

Distinguishing Plea Discounts And Trial Penalties, Ben Grunwald

Georgia State University Law Review

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and …

Violent Videos: Criminal Defense In A Digital Age, Amy Kimpel

Georgia State University Law Review

Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma.

This Article includes results …

Application, With Immediate Effect, Of The Organization And The Jurisdiction Rules In Criminal Courts, Bashher Zaghlool Zaghlool, Anwar Mohamed Al Massaada

UAEU Law Journal

The time scale of criminal law rule is determined according to its beginning moment and its end moment. The problem which arises is validity of these rules in terms of time when several rules dealing with the same subject come into force respectively. This issue arises specifically in a limited period of time between the date of the crime committed and the date of the final judgment issued. The rules of criminal jurisdiction organize procedural matter related to criminal courts, criminal jurisdiction and public persecution. Because of its procedural nature, they are subject to the immediate effect principle which governs …

Drafting Methods Of Criminal Legal Texts, Nofal Ali Alsafw

UAEU Law Journal

Criminal law is closely related to the other branches of Law for the sake of achieving the objectives of the legal system .The preparation and drafting stage is the most important stage of the legislative process. In fact, every mistake in the drafting leads to a legislative error, which in turn leads to a judicial error. Therefore, Criminal text must be devoid of any shortages, ambiguity or error, as the development of legislation to address all people of different cognitive levels and cultural backgrounds. It is imperative to use simple wording that is easy and clear to all. "The language …

Cruel And Unusual: Closing The Door On Juvenile De Facto Life Sentences, Thomas Garrity

Catholic University Law Review

There currently exists a split amongst the Federal Circuit Courts that stands ripe for review. The Supreme Court laid down clear precedent in its landmark decisions of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama that capital punishment and life without parole are cruel and unusual as applied to juvenile non-homicidal offenders categorically and as applied to juvenile homicidal offenders without consideration of youth as a mitigating factor. There, however, was a door left open by these cases that allowed for judges to side-step the Court’s mandate. Using excessively long term-of-years sentences—longer than the most hopeful of estimates …

Willful Blindness As Mere Evidence, Gregory M. Gilchrist

Loyola of Los Angeles Law Review

The willful blindness doctrine at criminal law is well-established and generally fits with moral intuitions of guilt. It also stands in direct tension with the first principle of American criminal law: legality. This Article argues that courts could largely preserve the doctrine and entirely avoid the legality problem with a simple shift: willful blindness ought to be reconceptualized as a form of evidence.

Definition Of The Crime Of Aggression And The Pertinent Conditions Of Practice Of The International Criminal Court In The Light Of The Amendments To The 2010 Kampala Conference, Dr. Zeyad Jaffal

UAEU Law Journal

This study showed the difficulties faced to reach an agreed definition of the crime of aggression since the establishment of the League of Nations in 1919 until the establishment of the International Criminal Court in 1998. In fact, these difficulties are still very problematic even after reaching a definition of this crime in the First Review Conference of the International Criminal Court, which held in Kampala in 2010, either because of the many loopholes contained in this definition or the different interpretations put forward by international jurisprudence around.

This study has concluded that the definition of the crime of aggression, …

Criminal Law Drafting Manual, Jean Mangan

Books

This textbook was created under a Round 19 Mini-Grant. It is hosted on the Open ALG (Affordable Learning Georgia) Projects platform.

Sham Subpoenas And Prosecutorial Ethics, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Prosecutors are given broad freedom to conduct their investigations through-out the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.Unlike law enforcement officials who may use deceptive tactics throughout an investigation, prosecutors are subject to professional rules of responsibility. All lawyers are subject to some variation of Rule 4.2 of the Model Rules of Professional Responsibility—the No-Contact Rule—which prohibits a lawyer from communicating with a represented individual. Prosecutors, however, have escaped the Rule’s reach by communicating with represented individuals through …

Criminal Law: Incompatible Approaches To Interpreters’ Translations: Protecting Defendants’ Right To Confront — State V. Lopez-Ramos, 929 N.W.2d 414 (Minn. 2019)., Alicia Neumann

Mitchell Hamline Law Review

No abstract provided.

Revocation And Retribution, Jacob Schuman

Journal Articles

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Imagining The Progressive Prosecutor, Benjamin Levin

Publications

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

A False Messiah? The Icc In Israel/Palestine And The Limits Of International Criminal Justice, Jeremie Bracka

Vanderbilt Journal of Transnational Law

This Article challenges the International Criminal Court’s (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor’s formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal …