Criminal Law Commons^™

Understanding Mass Incarceration In The Us Is The First Step To Reducing A Swollen Prison Population, Jeffrey Bellin

Popular Media

No abstract provided.

The Imagined Juror: How Hypothetical Juries Influence Federal Prosecutors (Book Review), Jeffrey Bellin

Popular Media

No abstract provided.

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

William & Mary Law Review

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

William & Mary Law Review

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Prescribing Opioids Without Fear Of Prosecution, Adam M. Gershowitz

Popular Media

No abstract provided.

The Opioid Doctors: Is Losing Your License A Sufficient Penalty For Dealing Drugs?, Adam M. Gershowitz

Faculty Publications

Imagine that a medical board revokes a doctor's license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a pain management specialist. Yet, during a one-year period he wrote more than 4,000 prescriptions for opioids--roughly eighteen scripts per day. Patients came from multiple states and from hundreds of miles away to get oxycodone prescriptions. And the doctor prescribed large quantities of opioids--up to 240 pills per month--to patients with no record of previously needing narcotic painkillers. Both federal and …

Trauma And Memory In The Prosecution Of Sexual Assault, Cynthia V. Ward

Faculty Publications

Part I of this article traces the history of the recovered memory movement in the criminal prosecution of sexual assault, discussing some prominent cases and their consequences for wrongly convicted defendants. Part II asks why the criminal law was so vulnerable to claims of sexual assault, and other violent crimes, that were often wildly improbable on their face. The article concludes that the structure of recovered memory theory had the effect of disabling checks in the criminal process which are designed to prevent unjust convictions. Part III applies that conclusion to the theory of Trauma-informed Investigation (TII) and the "Neurobiology …

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Faculty Publications

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for …

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

William & Mary Law Review

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Faculty Publications

No abstract provided.

Designed To Fail: The President’S Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler

William & Mary Law Review

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting common sense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory all …

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Misnamed, Misapplied, And Misguided: Clarifying The State Of Sentencing Entrapment And Proposing A New Conception Of The Doctrine, Jess D. Mekeel

William & Mary Bill of Rights Journal

No abstract provided.

Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs

Faculty Publications

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of …

"She Breaks Just Like A Little Girl": Neonaticide, The Insanity Defense, And The Irrelevance Of "Ordinary Common Sense", Michael L. Perlin

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Section 8: Criminal Law & Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Allocution For Victims Of Economic Crimes, Jayne W. Barnard

Faculty Publications

No abstract provided.

Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson

William & Mary Bill of Rights Journal

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious …

Section 6: Criminal Law & Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Neonaticide And The Misuse Of The Insanity Defense, Megan C. Hogan

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Section 7: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Criminal Law & Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 8: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Proving Entrapment Under The Predisposition Test, Paul Marcus

Faculty Publications

No abstract provided.