Digital Commons Network^™

Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she …

No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

This article presents a critique of marijuana prohibition and suggests some alternative regulatory approaches that would be more productive and consonant with justice. Part I relies on a forty-year empirical record to demonstrate that (1) reliance on a law enforcement approach has aggravated rather than mitigated the risks involved with marijuana use, and (2) criminalization, which results in the arrest of more than 700, 000 Americans annually for possession of any amount of marijuana, is an inhumane and destructive response to an act that almost 100 million Americans have committed. Part II assesses the relative merits of several alternative reform …

Stop The Killing: Potential Courtroom Use Of A Questionnaire That Predicts The Likelihood That A Victim Of Intimate Partner Violence Will Be Murdered By Her Partner, Amanda Hitt, Lynn Mclain

All Faculty Scholarship

Judges in domestic cases often underestimate the risk to a mother and her children that an angry and abusive father or other intimate partner poses. In a recent Maryland case, for example, two judges refused to deny a father visitation or require that visitation be supervised, despite the fact that the father had threatened suicide. During the father’s unsupervised visitation, he drowned all three of his children, then attempted to kill himself.

The Danger Assessment tool (the D.A.) developed by a Johns Hopkins Nursing professor and validated by herself and other social scientists shows how much the father’s thoughts of …

A Door Closed: The Right To Full Appellate Review Of Sentences Of Life Imprisonment Without Parole In West Virginia, Linnsey Evick

West Virginia Law Review

No abstract provided.

How (Not) To Think Like A Punisher, Alice Ristroph

Faculty Scholarship

No abstract provided.

Police Paternalism: Community Caretaking, Assistance Searches, And Fourth Amendment Reasonableness, Michael R. Dimino, Sr.

Washington and Lee Law Review

No abstract provided.

Fitting Punishment, Juliet Stumpf

Washington and Lee Law Review

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration Law relies on one sanctiondeportation- as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration Law stands alone in the legal landscape in this respect. Criminal Law incorporates proportionality when imposing graduated punishment based on the gravity of the offense; contract and tort Law provide for damages that are graduated based on the harm to others or to society. This Article represents the first and fundamental step …

Modes Of Discretion In The Criminal Justice System, Roger Fairfax

Presentations

No abstract provided.

The Future For Collected Prosecutorial Evidence At The International Criminal Tribunal For Rwanda, Gerda Visser

Cardozo Public Law, Policy & Ethics Journal

The article focuses on the International Criminal Tribunal for Rwanda (ICTR) and its Office of the Prosecutor (OTP), emphasizing the need to balance the preservation of sensitive information with the public's right to access historical records. It highlights the ICTR's role in developing international criminal law standards and the challenges of managing its vast archive, particularly regarding witness protection, privacy, and future prosecutions. The article proposes establishing an international judicial archive with a legal reviewing body to oversee access to the OTP database, ensuring transparency while safeguarding sensitive data.

Activating Victim Constituency In International Criminal Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

This article lays out why in the context of global crime, crime control and the legitimacy of global governance, a victim constituency makes sense in terms of the stated aims of international criminal justice and of a wider ‘new morality’ on which it should be grounded. The incapacity to confront appropriately the consequences to victims of global crime has tended to mean that international criminal justice and the governance that flows from it are unsatisfactorily entwined with sectarian international relations and narrow cultural inclusion. Therefore, in governance terms alone, the conceptualization of global crime victims should be expanded and emancipated …

Padilla V. Kentucky: Brief For Legal Ethics, Criminal Procedure, And Criminal Law Professors As Amici Curiae In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici curiae legal ethics, criminal procedure, and criminal law professors are 37 law professors who teach, research, and write about criminal law, criminal procedure, or legal ethics, including their intersection. The names, titles, and institutional affiliations (for identification purposes only) of these amici are listed in Appendix A. Some amici work as clinical professors, in which capacity they regularly counsel and advise clients in criminal matters and train attorneys on how to effectively represent such clients. Amici have a professional interest in this Court's consideration of the doctrinal, historical, and policy issues involved in this Court's interpretation of the Sixth …

Does Strickland Prejudice Defendants On Death Row?, Kenneth Williams

University of Richmond Law Review

No abstract provided.

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

Interrogations And The Guiding Hand Of Counsel: Montejo, Ventris, And The Sixth Amendment's Continued Vitality, Ben G. Cohen, Bidish J. Sarma, Robert J. Smith

NULR Online

No abstract provided.

Incremental Independence: Conforming The Law To The Process Of Adolescence, Megan E. Hay

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

Towards A More Reasonable Approach To Free Will In Criminal Law, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and …

Catching Up: The Need For New York State To Amend Its Juvenile Offender Law To Reflect Psychiatric, Constitutional And Normative National Trends Over The Last Three Decades, Michelle Haddad

Cardozo Public Law, Policy & Ethics Journal

The note argues that New York's Juvenile Offender Law of 1978 is outdated and in need of reform. Enacted in response to a tragic crime, the law shifted juvenile justice from rehabilitation to punishment, allowing children as young as 13 to be tried as adults. However, advancements in psychological understanding of adolescent brain development, constitutional rulings, and international trends emphasize the need for a more nuanced, rehabilitative approach. The note advocates for amending the law to reflect these developments and prioritize individualized consideration of juvenile cases.

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

Intimate Partner Violence: Criminal Justice Responses To High Lethality Cases, Victoria E. Collins

Sociology & Criminal Justice Theses & Dissertations

This study examines the relationship between the level of violence suffered by the victim in a domestic violence relationship and the criminal justice responses to that violence, namely arrest, prosecution and the issuance of protective orders. Data was obtained from a nonprofit domestic violence agency in Virginia Beach, Virginia. The data was collected by agency staff from victims seeking assistance. This study found that female victims of domestic violence that suffered higher levels of violence at the hands of their abuser were more likely to be issued a protective order. Female victims who suffered higher levels of violence were not …

Brief Of Amici Curiae In Support Of Respondent, Robert Calvin Brown, Iii V. State Of Maryland, No. 08-118, Brenda Bratton Blom

Court Briefs

Amici brief filed by the University of Maryland School of Law’s Clinical Program and members of the Baltimore legal community including legal educators, lawyers, student attorneys, service providers, government administrators, community based organizations, and nationally recognized individuals from community justice initiatives and organizations on Respondent’s behalf. The individuals and organizations represented in the brief have all collaborated together to build and support what are colloquially known as “problem solving dockets”: courts that are specialized, alternative sentencing dockets that offer diversionary programs to qualified offenders. The dockets are run out of Maryland’s district and circuit courts, but not separate, freestanding judicial …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Book Review, Victor Peskin, International Justice In Rwanda And The Balkans: Virtual Trials And The Struggle For State Cooperation (2008), Mark A. Drumbl

Scholarly Articles

Implementation of the law requires strategic cooperation. No surprise there: It does so even in the most taut domestic polity. Law is intrinsically contingent. And political. But what does the particularly acute dependency of international criminal law on political cooperation teach us about its pertinence? Its promise? Its limits? It is one thing to assess the functionality of international criminal law. It is another to gauge the value of international criminal law, when actuated through adversarial trials, in reconstituting shattered communities; and its effectiveness as a tool of transitional justice. At its core, Virtual Trials is an analysis about functionality. …

Shining The Bright Light On Police Interrogation In America, Mark A. Godsey

Faculty Articles and Other Publications

This article reviews Richard A. Leo’s book 'Police Interrogation and American Justice.' Prior to entering legal academia, Leo served as an associate professor of psychology and criminology, and performed groundbreaking empirical research into how police interrogators obtain confessions and how their interrogation techniques affect suspects. His body of work shines the bright light on police interrogation in American today. Leo depicts the values and structure of interrogation in a way that few, outside of the actual subjects/victims of interrogation, fully understand. Although I do not agree with all of his conclusions and proposed reforms, his work convincingly raises a point …

How To Improve Empirical Desert, Adam Kolber

Faculty Scholarship

No abstract provided.

Detection Of Deception In Criminal Defendents: Treatment Or Trial?, Loran Noelle Bounds

Theses Digitization Project

The purpose of this study is to determine how to detect whether a person is faking a mental illness. An area that is often malingered is insanity, where criminal defendents will fake that they are mentally ill as to avoid imprisonment or the death penalty. The death penalty is one of the most difficult defenses to raise and is rarely successful.

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

"You Think He Got Shot - Did You Maybe Shoot Him By Accident?": Linguistic Manipulation Of The Communicatively Immature During Police Interrogations, Kathryn C. Donoghue

Richmond Journal of Law and the Public Interest

It is undeniable that "punishment of the innocent makes a mockery of the law." Police who linguistically coerce false confessions from communicatively immature suspects mock the criminal justice system by evading accountability and convicting the vulnerable. This paper documents how common linguistic strategies directed at certain vulnerable groups have the potential to elicit false confessions. Part II reviews linguistic strategies routinely employed by trained interrogators. Part III then explores how mentally challenged and juvenile suspects, otherwise known as communicatively immature groups, are more susceptible to deceptive linguistic strategies. Part IV discusses how interrogators learn to extract confessions, while Part V …

The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner

Faculty Scholarship

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …