Criminal Law Commons^™

Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel

David C. Brown

Imprisonment is a growth industry in Australia. Over the past 30-40 years all state and territory jurisdictions have registered massive rises in both the absolute numbers of those imprisoned and the per capita use of imprisonment as a tool of punishment and control. Yet over this period there has been surprisingly little criminological attention to the national picture of imprisonment in Australia and to understanding jurisdictional variation, change and continuity in broader theoretical terms. This article reports initial findings from the Australian Prisons Project, a multi-investigator Australian Research Council funded project intended to trace penal developments in Australia since about …

Criminal Laws: Materials And Commentary On Criminal Law And Process In Nsw, Alex Steel, David Brown, David Farrier, Sandra Egger, Luke Mcnamara, Michael Grewcock, Donna Spears

David C. Brown

The success of Criminal Laws lies both in its distinctive features and in its appeal to a range of readerships. As one review put it, it is simultaneously a “textbook, casebook, handbook and reference work”. As such it is ideal for criminal law and criminal justice courses as a teaching text, combining as it does primary sources with extensive critical commentary and a contextual perspective. It is likewise indispensable to practitioners for its detailed coverage of substantive law and its extensive references and inter-disciplinary approach make it a first point of call for researchers from all disciplines. This fifth edition …

When Rights Become Empty Promises: Promoting An Exclusionary Rule That Vindicates Personal Rights, Robert Bloom, Erin Dewey

Robert Bloom

The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante. The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which …

Summary Of Toston V. State, 127 Nev. Adv. Op. 87, Kendra Kisling

Nevada Supreme Court Summaries

The Court considered an appeal of a district court order denying a writ of habeas corpus.

Summary Of Rogers V. State, 127 Nev. Adv. Op. No. 88, Amanda Ireland

Nevada Supreme Court Summaries

An appeal from a district court denial of a petition for a writ of habeas corpus, with consideration of the scope and applicability of Graham v. Florida to a term-of-years sentence.

Summary Of State V. Dist. Ct., 127 Nev. Adv. Op. 84, Michelle Newman

Nevada Supreme Court Summaries

The Court considered the State’s petition for a writ of mandamus challenging the district court’s exclusion of blood alcohol test results obtained by retrograde extrapolation from the prosecution of defendant for driving under the influence.

Injunctions In Domestic Violence: Case Study In Iran, Ehsan Zarrokh

Ehsan Zarrokh

As domestic violence becomes increasingly recognized a widespread social problem, judicial system has begun playing larger roles in providing legal protection to these victims. One way they are doing this in the Iran is through the use of protective restraining orders or injunctions. The purpose of this research was to determine if permanent Injunctions for Protection provide victims of Domestic Violence with a sense of security in alleviating fear of retaliation or on-going violence.

Historia, Maendeleo Na Mabadiliko Ya Katiba Tanzania Tangu Uhuru Hadi Miaka Hamsini Ya Uhuru 9 Desemba 2011., Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

Jamhuri ya Muungano wa Tanzania ni nchi iliyotokana na nchi mbili za Tanganyika na Zanzibari mwaka 1964, tangu uhuru wa Tanganyika 1961 na uhuru wa Zanzibari 1963 pamekuwapo na maendeleo ya kikatiba kwa upande wa Muungano na kwa Zanzibari ambayo hatuna budi kuyatazama kwa mapana yake hasa juu ya ushirikishwaji wa watu katika kuzipata katiba hizi.

No Change In Sight For Sentencing Guidelines, Wes R. Porter

Publications

In the post-Booker era, the commission must reinvent itself to provide a useful tool for the courts in determining punishment, explains Wes Reber Porter of Golden Gate University School of Law.

Juvenile Diversion Programs, Robert Marsh, Steven Patrick

Robert L. Marsh

The dilemma of dealing with youth culture has been an age-old cultural concern. The process of socializing the young and dealing with their positive and negative behaviors has concerned societies and governments as diverse as the ancient Romans and Greeks and modern Americans. In the American colonies, children occupied a low status and, as such, were treated harshly. Societies have employed a number of methods to control and teach correct behavior to the young. Most policies concentrated on some type of punishment. The public policies for youthful misbehavior in both England and its former colonies often included trial in an …

Simulating Correctional Disturbances: The Application Of Organization Control Theories To Correctional Organizations Via Computer Simulation, Steven Patrick, Patricia Dorman, Robert Marsh

Robert L. Marsh

Inmate group behavior is a complex phenomenon that many researchers have attempted to understand. Most of the individual theories applied to this issue have had limited success. This work uses computer simulation to apply a complex theory of organizational control to the issue of inmate group behavior that incorporates all the major theoretical components found in the individual theories. The complete theory is first presented and then basic simulation results are discussed. The findings show that the simulated theory produced results that are empirically realistic. The control processes used by prisons generally produce compliance from inmates but these same control …

Physiological And Psychosocial Assessment And Treatment Of Sex Offenders: A Comprehensive Victim-Oriented Program, Robert Marsh, Anthony Walsh

Robert L. Marsh

This paper attempts to define the "optimal" sex offender treatment program based on a review of the empirical literature and on the authors' clinical experience with sex offenders. An important first step in any treatment program is the proper assessment of the condition to be treated. Assessment of sex offenders should include the use of the penile plethysmograph and the polygraph, as well as the more traditional methods of psychosocial assessment. These physiological tools are also useful as adjunct treatment tools. It is asserted that restitution therapy be the operating philosophy of any good treatment program, and that various aspects …

Control Group Study Of Juvenile Diversion Programs: An Experiment In Juvenile Diversion—The Comparison Of Three Methods And A Control Group, Steven Patrick, Robert Marsh, Wade Bundy, Susan Mimura, Tina Perkins

Robert L. Marsh

Juvenile diversion methods have been tested in many states in an effort to reduce recidivism. This paper reports on an experimental juvenile diversion program and the evaluation to assess the effects on recidivism during the experimental period. In this control group design first-time juvenile status offenders were randomly assigned to three experimental groups: Juvenile Accountability Program, Youth Court, or Magistrate Court and compared with an Educational Control group. The data revealed that the Juvenile Accountability diversion program, which diverted offenders from the justice system and held them accountable of their offenses, showed positive signs for reducing recidivism.

Perceptions Of Punishment And Rehabilitation Among Inmates In A Medium Security Prison, Steven Patrick, Robert Marsh

Robert L. Marsh

Inmate perceptions are examined in relation to punishment and rehabilitation as goals of prison. The results from a random sample of inmates in a medium security prison appear to show that inmate perceptions of punishment and rehabilitation are independent of one another but are simultaneously related to different types of inmate relationships with others in the prison. Additionally, inmate perceptions of punishment appear to be related to the physical environment of the prison. This paper discusses structural and policy implications of these findings. It seems that, because perceptions of punishment and rehabilitation are independent it may be possible to increase …

The Practice Of Native American Spirituality In Prison: A Survey, Robert Marsh, T. Cox

Robert L. Marsh

Native Americans have been severely restricted in practicing their traditional religions and spiritual traditions in the United States although the First Amendment specifically guarantees religious freedom. A discussion is presented of the differences in Native American spirituality compared to the Euro‐American concept of religion and the subsequent passage of Native American Religious Freedom Act of 1978 to guarantee religious expression for this group. A nationwide survey was conducted of all state correctional departments to determine the numbers of Native Americans incarcerated in state prisons and the access of this group to practice traditional religions while incarcerated. Data is presented on …

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …

Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan

San Diego Law Review

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy

San Diego Law Review

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua Fershee

William & Mary Environmental Law and Policy Review

No abstract provided.

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

Too Big To Obey: Why Bp Should Be Debarred, Rena Steinzor, Anne Havemann

William & Mary Environmental Law and Policy Review

No abstract provided.

Criminal Law, Franklin J. Hogue, Laura D. Hogue

Mercer Law Review

We have culled through the most important criminal cases of this reporting period' and selected those that resulted in changes to criminal case law that will likely have an effect upon the way prosecutors and defense attorneys approach criminal cases in Georgia.

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown

George D. Brown

In this Article, Professor Brown examines the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions under the mail fraud statute and considers the general debate over the proper scope of federal criminal law. Professor Brodin addresses the question of whether a re-examination of mail fraud would focus on constitutional or statutory issues and by utilizing the Supreme Court case United States v. Lopez examines the question of internal limits on the mail fraud statute.

Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled …

German Vat Compliance - Moving One Step Closer To Automated Third-Party Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Recent developments in German VAT compliance, notably (a) the imposition of criminal penalties for failing to immediately amend a preliminary return that is known to be in error [Bundesgerichtshof decision of March 17, 2009, No. BGH 1 StR 342/08], when considered in tandem with (b) amendments to the voluntary disclosure rules, Gesetz zur Vebesserung der Bekämpfung von Geldwäsche und Steuerhinterziehung, it is clear that the German VAT compliance landscape has changed dramatically in the past year.

Taken as a whole, the German rules strongly encourage internal audits, self-reviews, and immediate self-disclosures of errors in previously filed returns and taxes paid. …

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …