Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Criminal Law (28)
- Social and Behavioral Sciences (24)
- Legal Studies (23)
- Sociology (23)
- Law and Society (22)
-
- Arts and Humanities (19)
- Jurisprudence (19)
- Philosophy (18)
- Social Control, Law, Crime, and Deviance (18)
- Criminology and Criminal Justice (17)
- Criminology (15)
- Ethics and Political Philosophy (13)
- Law Enforcement and Corrections (7)
- Courts (5)
- Public Law and Legal Theory (5)
- Civil Rights and Discrimination (4)
- Constitutional Law (4)
- Public Affairs, Public Policy and Public Administration (4)
- Legal Profession (3)
- Psychology (3)
- Social Welfare Law (3)
- Health Law and Policy (2)
- Inequality and Stratification (2)
- Judges (2)
- Law and Psychology (2)
- Legal Theory (2)
- Legislation (2)
- Medicine and Health Sciences (2)
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 33
Full-Text Articles in Criminal Procedure
Judge Frankel’S Fifty-Year-Old Invitation To Reconstruct Sentencing, Jelani Jefferson Exum
Judge Frankel’S Fifty-Year-Old Invitation To Reconstruct Sentencing, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
America was a different place at the time Judge Marvin Frankel penned his now-famous text Criminal Sentences: Law without Order in 1973. Richard Nixon was the U.S. president. The Vietnam War was ending. The Watergate scandal was unfolding. There was much to grab the public’s attention, and criminal sentencing was not a national or international headline. Just two years earlier, President Nixon had declared a war on drugs and targeted drug abuse as “public enemy number one,” but it would be over a decade before punitive mandatory minimum drug sentences would become our sentencing norm. At the time of …
Navigating Beyond The Lodestar: Borrowing The Federal Sentencing Guidelines To Provide Fee-Shifting Predictability, Matthew Ahn
Navigating Beyond The Lodestar: Borrowing The Federal Sentencing Guidelines To Provide Fee-Shifting Predictability, Matthew Ahn
Dickinson Law Review (2017-Present)
The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards …
Judges And Mass Incarceration, Carissa Byrne Hessick
Judges And Mass Incarceration, Carissa Byrne Hessick
William & Mary Bill of Rights Journal
It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.
Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …
Problematic Ai — When Should We Use It?, Fredric Lederer
Problematic Ai — When Should We Use It?, Fredric Lederer
Popular Media
No abstract provided.
No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu
William & Mary Law Review
The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.
Therefore, this Note proposes …
Old Age As The Hidden Sentencing Factor, Adam M. Gershowitz
Old Age As The Hidden Sentencing Factor, Adam M. Gershowitz
Faculty Publications
Imagine two doctors who illegally sold opioids in exchange for cash. Both doctors sold roughly the same quantity of pills, had no prior criminal convictions, and accordingly faced the same sentencing guidelines range. The major difference was that one doctor was in his sixties and considerably older than the other doctor. The Federal Sentencing Guidelines provide that judges should consider a defendant's age only in atypical cases. Yet, this Article demonstrates that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime.
This Article gathers sentencing data for almost 130 doctors convicted in federal …
Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz
Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz
Faculty Publications
Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off …
When "Reasonableness" Is Not So Reasonable: The Need To Restore Clarity To The Appellate Review Of Federal Sentencing Decisions After Rita, Gall, And Kimbrough, Craig D. Rust
Touro Law Review
No abstract provided.
Gender And Sentencing: Single Moms, Battered Women, And Other Sex-Based Anomalies In The Gender-Free World Of The Federal Sentencing Guidelines, Myrna S. Raeder
Gender And Sentencing: Single Moms, Battered Women, And Other Sex-Based Anomalies In The Gender-Free World Of The Federal Sentencing Guidelines, Myrna S. Raeder
Pepperdine Law Review
No abstract provided.
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
All Faculty Scholarship
No abstract provided.
Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas
Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Punishment As Contract, Claire Oakes Finkelstein
Punishment As Contract, Claire Oakes Finkelstein
All Faculty Scholarship
This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …
Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller
Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller
All Faculty Scholarship
No abstract provided.
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
All Faculty Scholarship
What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
All Faculty Scholarship
Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
All Faculty Scholarship
No abstract provided.
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
All Faculty Scholarship
The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
All Faculty Scholarship
Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …
Pleas' Progress, Stephanos Bibas
The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas
The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach
Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach
All Faculty Scholarship
No abstract provided.
Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas
Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky
Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky
All Faculty Scholarship
No abstract provided.
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas
Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Crazy Reasons, Stephen J. Morse
Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein
Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.