Cybersurveillance Without Restraint? The Meaning And Social Value Of The Probable Cause And Reasonable Suspicion Standards In Governmental Access To Third-Party Electronic Records, 2013 Northwestern Pritzker School of Law
Cybersurveillance Without Restraint? The Meaning And Social Value Of The Probable Cause And Reasonable Suspicion Standards In Governmental Access To Third-Party Electronic Records, Andrew E. Taslitz
Journal of Criminal Law and Criminology
No abstract provided.
Adventures On The Autobahn And Infobahn: United States V. Jones, Mandatory Data Retention, And A More Reasonable “Reasonable Expectation Of Privacy”, 2013 Northwestern Pritzker School of Law
Adventures On The Autobahn And Infobahn: United States V. Jones, Mandatory Data Retention, And A More Reasonable “Reasonable Expectation Of Privacy”, John A. Stratford
Journal of Criminal Law and Criminology
No abstract provided.
Rethinking The Use Of Community Supervision, 2013 Northwestern Pritzker School of Law
Rethinking The Use Of Community Supervision, Cecelia Klingele
Journal of Criminal Law and Criminology
No abstract provided.
Differences In Punitiveness Across Three Cultures: A Test Of American Exceptionalism In Justice Attitudes, 2013 Northwestern Pritzker School of Law
Differences In Punitiveness Across Three Cultures: A Test Of American Exceptionalism In Justice Attitudes, Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, John M. Darley
Journal of Criminal Law and Criminology
No abstract provided.
The Iron Curtain: Alabama's Practice Of Excluding Inmates From Parole Release Hearings And Its Flawed Underpinnings, 2013 Northwestern Pritzker School of Law
The Iron Curtain: Alabama's Practice Of Excluding Inmates From Parole Release Hearings And Its Flawed Underpinnings, Erin Lange Ramamurthy
Journal of Criminal Law and Criminology
No abstract provided.
Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., 2013 St. Mary's University
Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich
The Scholar: St. Mary's Law Review on Race and Social Justice
In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …
Transcending The Criminal Law's "One Size Fits All" Response To Domestic Violence, 2013 California Western School of Law
Transcending The Criminal Law's "One Size Fits All" Response To Domestic Violence, Hannah Brenner
Faculty Scholarship
Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.
The state legislative landscape has historically centered around a very …
The Poverty Defense, 2013 University of Baltimore School of Law
The Poverty Defense, Michele E. Gilman
All Faculty Scholarship
Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent …
What Real-World Criminal Cases Tell Us About Genetics Evidence, 2013 Fordham University School of Law
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
Faculty Scholarship
This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, 2013 Fordham University School of Law
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Brain Overclaim Redux, 2013 University of Pennsylvania Carey Law School
Patent Infringement As Criminal Conduct, 2013 New York Law School
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Articles & Chapters
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …
The Conditions Of Pretrial Detention, 2013 University of Pennsylvania Carey Law School
The Conditions Of Pretrial Detention, Catherine T. Struve
All Faculty Scholarship
The Supreme Court has set forth in detail the standards that govern convicted prisoners’ Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law in the lower courts is unclear and inconsistent, but shows a trend toward assimilating pretrial detainees’ claims to those of convicted prisoners. Based on a review of Supreme Court caselaw concerning related questions, this Article argues that, for claims arising after a judicial determination of probable cause, the tests prevailing in the lower courts should be replaced by a substantive Due Process framework that …
"Children Are Different": Constitutional Values And Justice Policy, 2013 Columbia Law School
"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott
Faculty Scholarship
This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing …
The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, 2013 Columbia Law School
The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David E. Pozen
Faculty Scholarship
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an …
Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, 2013 University of Michigan Law School
Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann
Articles
On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the …
Punitive Preventive Justice: A Critique, 2013 Columbia Law School
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Faculty Scholarship
This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …
Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, 2013 Columbia Law School
Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald
Faculty Scholarship
This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …
Breaking The Mexican Cartels: A Key Homeland Security Challenge For The Next Four Years, 2013 Georgetown University Law Center
Breaking The Mexican Cartels: A Key Homeland Security Challenge For The Next Four Years, Carrie F. Cordero
Georgetown Law Faculty Publications and Other Works
Although accurate statistics are hard to come by, it is quite possible that 60,000 people have died in the last six-plus years as a result of armed conflict between the Mexican cartels and the Mexican government, amongst cartels fighting each other, and as a result of cartels targeting citizens. And this figure does not even include the nearly 40,000 Americans who die each year from using illegal drugs, much of which is trafficked through the U.S.-Mexican border. The death toll is only part of the story. The rest includes the terrorist tactics used by cartels to intimidate the Mexican people …
It Doesn't Pass The Sell Test: Focusing On "The Facts Of The Individual Case" In Involuntary Medication Inquiries, 2013 Georgetown University Law Center
It Doesn't Pass The Sell Test: Focusing On "The Facts Of The Individual Case" In Involuntary Medication Inquiries, Susan A. Mcmahon
Georgetown Law Faculty Publications and Other Works
Criminal defendants who are incompetent to stand trial have a significant liberty interest in refusing the antipsychotic medication that could restore their competency. The Supreme Court cautioned that instances of intrusion upon that right “may be rare,” and, in Sell v. United States, it laid out what it believed to be stringent criteria for when a defendant could be medicated against his will. Yet, since Sell, trial courts have ordered over sixty-three percent of defendants involuntarily medicated. These individuals did not pose a danger to themselves or others, and they were rarely accused of crimes that involved damage …