Criminal Law Commons^™

Overcriminalization's New Harm Paradigm, Todd Haugh

Vanderbilt Law Review

The harms of overcriminalization are usually thought of in a particular way-that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal behavior itself, particularly by white collar …

Misdemeanor Decriminalization, Alexandra Natapoff

Vanderbilt Law Review

As the United States reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, replacing those crimes with so-called "nonjailable" or "fine-only" offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars-nonjailable offenses do not trigger the right to counsel-while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has …

Criminal Asset Forfeiture And The Sixth Amendment After "Southern Union" And "Alleyne:" State-Level Ramifications, Brynn Applebaum

Vanderbilt Law Review

The Founding Fathers thought the jury-trial right was so fundamental to our system of justice that they included it in the Sixth Amendment of the United States Constitution. The right to trial by jury serves to protect criminal defendants against government overreaching by ensuring that they will be judged by their fellow citizens.' And as a whole, our system of justice and our citizenry have remained committed to the jury trial. But since the Founding, the Supreme Court has narrowed the application of the Sixth Amendment's guaranty.

Two decades ago, the Supreme Court decided in Libretti v. United States that …

Predictive Due Process And The International Criminal Court, Samuel C. Birnbaum

Vanderbilt Journal of Transnational Law

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced …

Explaining Inhumanity: The Use Of Crime-Definition Experts At International Criminal Courts, Caroline Davidson

Vanderbilt Journal of Transnational Law

International criminal courts must not only decide the guilt or innocence of defendants in immensely serious cases, but also make good law in the process. To help them do so, these courts have turned to experts. This Article identifies a type of expert witness that, thus far, has escaped scholarly attention: the crime-definition expert. Crime-definition experts have provided expert reports and testimony to international criminal courts on the meaning of the very crimes with which defendants are charged, including genocide, forced marriage, and recruitment and use of child soldiers. This Article critically evaluates the risks associated with using crime-definition experts …

Indemnification As An Alternative To Nullification, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The federalization of criminal law arguably threatens the states’ traditional police powers. Congress has criminalized myriad activities the states condone (or at least tolerate); it has denied federal criminal defendants rights they would enjoy in state proceedings; and it has imposed harsher punishments for crimes proscribed by both levels of government. In many instances, Congress’s decision to supplant the policy choices made by the states appears unjustified by any legitimate federal interest. The conventional wisdom suggests there is very little the states themselves can do to stop the federalization of criminal law and the resultant diminution of state prerogatives. The …

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Vanderbilt Journal of Transnational Law

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair …

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …