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Articles 1 - 30 of 106

Full-Text Articles in Law

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois Apr 2019

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Owen Jones

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary people will ...


Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry Oct 2018

Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry

Suzanna Sherry

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal ...


A Few Criminal Justice Big Data Rules, Stephen E. Henderson Dec 2017

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Stephen E Henderson

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing.  But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world.  In that spirit, I propose ten high-level rules to guide ...


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger Aug 2016

Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger

Robert M. Sanger

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if  California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead ...


Implementing Change In Sentencing And Corrections: The Need For Broad-Based Research, Nora V. Demleitner Jul 2016

Implementing Change In Sentencing And Corrections: The Need For Broad-Based Research, Nora V. Demleitner

Nora V. Demleitner

None available


How To Change The Philosophy And Practice Of Probation And Supervised Release: Data Analytics, Cost Control, Focus On Reentry, And A Clear Mission, Nora V. Demleitner May 2016

How To Change The Philosophy And Practice Of Probation And Supervised Release: Data Analytics, Cost Control, Focus On Reentry, And A Clear Mission, Nora V. Demleitner

Nora V. Demleitner

None available.


Alternative Visions For The Federal Criminal Justice And Corrections System: Is True Change Possible?, Nora V. Demleitner Feb 2016

Alternative Visions For The Federal Criminal Justice And Corrections System: Is True Change Possible?, Nora V. Demleitner

Nora V. Demleitner

None available.


The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven Shatz Dec 2015

The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven Shatz

Steven F. Shatz

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine ...


How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock Dec 2015

How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock

Jalila Jefferson-Bullock

It has now become fashionable to loudly proclaim that the U.S. criminal justice system is irreparably broken and requires a complete dismantling and total reconfiguration. The evidence is robust and the record is clear. Prisons are bloated and bursting with prisoners; budgets are ill endowed to support them; and offenders, due to excessive periods of unfruitful incapacitation, reenter society lacking in contributable and marketable skills. Racial disparities continue to corrupt charging and sentencing decisions; police brutality and human massacre are, woefully, commonplace; and the cycle continues.

The United States’ criminal sentencing laws too often fail to advance any legitimate ...


Submission Letter To The Nsw Sentencing Council, David Brown, Julia Quilter Dec 2015

Submission Letter To The Nsw Sentencing Council, David Brown, Julia Quilter

David C. Brown

Re: Bail - Additional show cause offences We refer to the Attorney General's request for the Sentencing Council to consider a proposal to make amendments to the Bail Act 2013 (NSW) ('the 2013 Act') and specifically the Terms of Reference regarding the addition to the categories of offences for which the accused must 'show cause' before bail may be granted. The specific addition under consideration is with respect to an accused charged with a serious indictable offence committed: • while subject to a good behaviour bond, intervention program order, intensive correction order; • while serving a sentence in the community; or • while ...


Dividing Crime, Multiplying Punishments, John F. Stinneford Nov 2015

Dividing Crime, Multiplying Punishments, John F. Stinneford

John F. Stinneford

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and ...


Sentencing And The Salience Of Pain And Hope, Benjamin Berger Sep 2015

Sentencing And The Salience Of Pain And Hope, Benjamin Berger

Benjamin L. Berger

What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of ...


Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito Aug 2015

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.


Sentencing Trends For Economic Crime, Robert Sanger Feb 2015

Sentencing Trends For Economic Crime, Robert Sanger

Robert M. Sanger

Economic crime is something that intersects with the work of many practitioners, whether corporate counsel, business lawyers, civil litigators, estate planners, or family lawyers. As many know, the United States Sentencing Guidelines (“Guidelines”) have treated economic crimes with stiff guideline sentences. When the amount of intended loss rises, the sentences accelerate to the level of being extremely harsh. The United States Sentencing Commission has just published the results of their study of sentencing for economic crimes as applied in practice.The Guidelines have been declared to be advisory by the United States Supreme Court in United States v. Booker, 543 ...


Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise Feb 2015

Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise

Michael Heise

Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant ...


Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello Jan 2015

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.


Criminal Forfeiture Procedure In 2015: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella Dec 2014

Criminal Forfeiture Procedure In 2015: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is another in a series of articles on developments in the federal case law relating to criminal forfeiture procedure. It covers the cases decided in 2014 and early 2015.

Like the earlier articles in this series, this one does not attempt to address every topic related to criminal forfeiture, nor all of the exceptions and nuances that apply to the topics that are addressed; rather, it covers only those matters on which there was a significant development in the case law in the past year. Thus a basic familiarity with federal criminal forfeiture procedure is assumed.

The Article begins ...


Black Innocence And The White Jury, Sheri Johnson Dec 2014

Black Innocence And The White Jury, Sheri Johnson

Sheri Lynn Johnson

Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that ...


Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb Dec 2014

Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb

Sherry Colb

No abstract provided.


Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford Dec 2014

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker ...


Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston Oct 2014

Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston

E. Lea Johnston

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This Article ...


Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston Oct 2014

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

E. Lea Johnston

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm ...


Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston Oct 2014

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

E. Lea Johnston

At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners. This Article builds a case for expanding judges’ sentencing power by ...


At Issue: Should Mandatory Sentences Be Abolished?, Steven L. Chanenson, Douglas A. Berman Jan 2014

At Issue: Should Mandatory Sentences Be Abolished?, Steven L. Chanenson, Douglas A. Berman

Steven L. Chanenson

No sentencing structure can always guarantee the indisputably "right" result. But we should strive for greater fairness and effectiveness through nuanced sentencing guidelines and appellate review. Mandatory minimums within such a system are a tool of prosecutorial power masquerading as an instrument of justice.


The Quest For Finality: Five Stories Of White Collar Criminal Prosecution, Lucian Dervan Dec 2013

The Quest For Finality: Five Stories Of White Collar Criminal Prosecution, Lucian Dervan

Lucian E Dervan

In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.

Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences ...


Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel Gross, Barbara O'Brien, Chen Hu, Edward Kennedy Dec 2013

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel Gross, Barbara O'Brien, Chen Hu, Edward Kennedy

Edward H. Kennedy

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to ...


"The Sentencing Of Aboriginal Accused With Fasd: A Search For Different Pathways", David Milward Dec 2013

"The Sentencing Of Aboriginal Accused With Fasd: A Search For Different Pathways", David Milward

Dr. David Milward

No abstract provided.


Last Words: A Survey And Analysis Of Federal Judges' Views On Allocution In Sentencing, Ira P. Robbins Dec 2013

Last Words: A Survey And Analysis Of Federal Judges' Views On Allocution In Sentencing, Ira P. Robbins

Ira P. Robbins

Allocution-the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing-is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions-and many others-are answered directly in this first-ever study of judges' views and practices regarding allocution. The authors surveyed all federal ...


Criminal Forfeiture In 2014: An Annual Survey Of Developments In The Law, Stefan D. Cassella Dec 2013

Criminal Forfeiture In 2014: An Annual Survey Of Developments In The Law, Stefan D. Cassella

Stefan D Cassella

This paper is another in the series of annual surveys of the case law regarding the procedure to making criminal forfeiture part of the sentence in a federal criminal case. It begins with the scope of criminal forfeiture, and the moves chronologically through the stages of a typical criminal case from indictment and trial through the post-trial ancillary proceeding.