Criminal Procedure Commons^™

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as to their appropriate ...

Is The White Collar Offender Privileged?, Samuel W. Buell

Faculty Scholarship

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their ...

Flawed Forensics And The Death Penalty: Junk Science And Potentially Wrongful Executions, Jessica Dwyer-Moss

Seattle Journal for Social Justice

No abstract provided.

The Citizenship Line: Rethinking Immigration Exceptionalism, Rachel E. Rosenbloom

Boston College Law Review

It is not possible to police the movement of “aliens” without first determining who is and is not a citizen. Yet little scholarly attention has been devoted to the nature of citizenship determinations or their implication for our understanding of immigration enforcement as a whole. Thousands of U.S. citizens are caught up in immigration enforcement actions every year, and dozens of cases have come to light in which erroneous deportations can be traced to the lack of procedural protections within the deportation system, manifested in summary proceedings, lengthy detention, and lack of access to counsel. Such cases compel us ...

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, etc. The heightened standards for discrimination mean the claimant has more to prove when the most is on the line. This disparate treatment, by adjudicating claims of discrimination with two different standards, is unconstitutional as it violates the Equal Protection and Due Process Clauses.

First, the theories of discrimination are discussed in order to know how to evaluate claims of discrimination. Second, the current death ...

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, etc. The heightened standards for discrimination mean the claimant has more to prove when the most is on the line. This disparate treatment, by adjudicating claims of discrimination with two different standards, is unconstitutional as it violates the Equal Protection and Due Process Clauses.

First, the theories of discrimination are discussed in order to know how to evaluate claims of discrimination. Second, the current death ...

A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn

Seattle University Law Review

The Double Jeopardy Clause provides that no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence. The court accepted this plea and ordered a finding of guilty with a recommended sentence of six years. However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred “to take the time” instead of proceeding to trial. The judge then refused to accept Mr. Cabrera’s ...

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key ...

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

Faculty Scholarship

By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules ...

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.

Is Too Big To Fail Too Big To Confess?: Scrutinizing The Sec's "No-Admit" Consent Judgment Proposals, Lynndon Groff

Boston College Law Review

When the Securities and Exchange Commission initiates court action against a public company for violation of federal securities laws, it often proposes a court-enforced settlement between the parties known as a “consent judgment.” Nearly all SEC consent judgment proposals contain a “no-admit” clause, whereby the defendant explicitly refuses to confess to the allegations asserted in the SEC’s complaint. Although “no-admit” consent judgments avoid the costs and uncertainties associated with prolonged litigation, they might not be effective in deterring future misconduct, and they could conceal the full truth about the defendant’s wrongdoing. In the wake of the 2008 financial ...

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Boston College Law Review

The “anchoring effect” is a cognitive bias by which people evaluate numbers by focusing on a reference point—an anchor—and adjusting up or down. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than ninety percent of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal case in ...

Taking Voluntariness Seriously, Ian P. Farrell, Justin F. Marceau

Boston College Law Review

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as ...

Collateral Compliance, Joshua D. Blank

New York University Law and Economics Working Papers

As most of us are aware, the failure to comply with the tax law can lead to tax penalties, which almost always take the form of monetary sanctions. But tax noncompliance has other consequences as well. Collateral sanctions for tax noncompliance — which apply on top of traditional tax penalties and revoke or deny government-provided benefits — increasingly apply to individuals who have failed to obey the tax law. They range from denial of hunting permits to suspension of driver’s licenses to revocation of passports. Further, as the recent Supreme Court case Kawashima v. Holder demonstrates, some individuals who are subject ...

Culpability Without Fault: The Case For Punishing Executives For Crimes Of Their Corporation, Amy Sepinwall

Amy J. Sepinwall

The prevailing view of criminal responsibility judges the individual in isolation from others. As a result, the prevailing view has difficulty tracking culpability in group contexts, where individuals act together, since it may be impossible to disaggregate each member’s contributions and so judge each member individually. That we are without the theoretical or justificatory resources to satisfyingly address group wrongs is not idle observation; instead, this impoverishment accounts for many instances of failures to punish, and so many instances of justice undone. Perhaps most saliently now, if we wish to understand why it is that so few bankers have ...

Presumed Guilty Until Proven Innocent: California Penal Code Section 851.8 And The Injustice Of Imposing A Factual Innocence Standard On Arrested Persons, Natalie Lyons

Golden Gate University Law Review

The statutory remedy for removing an arrest from a person’s record places an undue burden upon a person who has never been found guilty of a crime. California Penal Code section 851.8 mandates that an arrested person prove her factual innocence before the arrest record may be sealed and destroyed.

This Comment examines the injustice of this section 851.8 requirement that an arrested person prove her innocence before the arrest record will be destroyed. Part I considers the probative value of an arrest record measured against its impact on the arrested person’s life, focusing on the ...

The Quagmire That Nobody In The Federal Government Wants To Talk About: Marijuana, Melanie M. Reid

Melanie M. Reid

Legalization of marijuana has become the battle cry of many in the United States who are weary of the so-called “war on drugs” and are anxious for the federal government to allow them to use marijuana as their vice of choice. In the aftermath of several states choosing to legalize marijuana for medical use or for recreational use, the federal government must respond. Currently, both law enforcement and medical marijuana dispensaries are at a standoff – law enforcement awaits orders to shut down dispensaries, and the dispensaries are risking potential seizure and the loss of their businesses. The federal government has ...

Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when ...

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and ...

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on ...