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Turning Jails Into Prisons—Collateral Damage From Kentucky's War On Crime, Robert G. Lawson

Law Faculty Scholarly Articles

The primary purpose of this article is to scrutinize Kentucky's ever-increasing reliance on local jails for the incarceration of state prisoners. This objective cannot be achieved without an examination of the problems that compel counties and cities to allow (and even encourage) the state to capture their jails for this use. The first half of the article (Parts I-IV) provides general information about jails (including some pertinent history), contains a detailed description of jail functions (including some that have descended upon jails by default), and concludes with a discussion of what the state has done over two decades to convert …

Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel

UF Law Faculty Publications

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …

Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay

Faculty Scholarship

Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …

Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence. …

Culture In Our Midst, Elaine M. Chiu

Faculty Publications

Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and …

Culture As Justification, Not Excuse, Elaine M. Chiu

Faculty Publications

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

Articles

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

The Challenge Of A Global Standard Of Justice: Peace, Pluralism, And Punishment At The International Criminal Court, Eric Blumenson

Suffolk University Law School Faculty Works

This Article addresses what is often described as the "peace versus justice" problem, as it confronts the recently-established International Criminal Court (ICC). The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. If a state then grants amnesty or de facto impunity as the price of peace, should the ICC's prosecutor bring charges in its stead?

This Article analyzes the conflicting claims of peace, pluralism, and punishment in such cases by exploring three fundamental questions:

(1) Does justice in the aftermath of crime always require prosecution and punishment?

(2) If …

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Criminalizing Marital Rape: A Comparison Of Judicial And Legislative Approaches, Theresa Fus

Vanderbilt Journal of Transnational Law

Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and …

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well as …

Enforcement Effectiveness In The Canadian Capital Markets, Poonam Puri

Commissioned Reports, Studies and Public Policy Documents

This paper focuses on the fundamental principles underlying effective enforcement by regulators. In particular, this paper analyzes the critical role of the criminal law and judges in effectively addressing capital markets misconduct. It also analyzes how securities regulators can best structure the wide discretion that is afforded to them in designing enforcement strategies and policies that are effective, fair, transparent and accountable. This study also examines the current allocation and division of enforcement responsibilities in respect of the capital markets amongst the numerous entities involved and explores contentious issues related to the current overlapping and concurrent jurisdiction. Finally, this study …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

The Big Chill?: Contextual Judgment After R. V Hamilton, Richard Devlin, Matthew Sherrard

Dalhousie Law Journal

The tone and thrust of the Ontario Court ofAppeal's decision in R. v. Hamilton will serve to chill efforts by sentencing judges to tailor their responsibilities to accord with the recognized realities of systemic and intersectional inequality in Canadian society The decision presents an unduly conservative response to the judicial function question, and an understandable, if excessively cautious, answer with regard to the application of systemic, intersectional inequality issues in practice. Specifically, the decision underplays the overall remedial goal of section 718 of the Criminal Code by overemphasizing the particularity of Aboriginal peoples, and ignoring the specificity of especially vulnerable …

Role-Based Policing: Restraining Police Conduct “Outside The Legitimate Investigative Sphere”, Eric J. Miller

ExpressO

The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs.

In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the …

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

ExpressO

This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

An Honest Approach To Plea Bargaining, Steven P. Grossman

All Faculty Scholarship

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

Official Indiscretions: Considering Sex Bargains With Government Informants, Susan S. Kuo

Faculty Publications

This article addresses an alarming new investigatory practice employed by law enforcement officials: requiring arrestees to carry out sexual tasks as confidential informants. Requiring arrestee informants to engage in sexual activities in exchange for a reduction or possible elimination of criminal penalties they might otherwise incur raises constitutional concerns. Informants can and do accept a variety of investigative assignments. But, as this article shows by drawing on sociological research, sex tasks differ fundamentally from more conventional informant undertakings. The importance of this distinction is that while adult individuals undoubtedly can provide consent to sexual matters, the validity of such consent …

The Distinctiveness Of Domestic Abuse: A Freedom Based Account, Victor Tadros

Louisiana Law Review

No abstract provided.

The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii

Faculty Publications

For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district …

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

The Ethics Of Cause Lawyering: An Examination Of Criminal Defense Lawyers As Cause Lawyers, Margareth Etienne

ExpressO

Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) “hired guns” who would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I explore the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the “cause” of legal reform in …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey

Faculty Articles

Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.

In Texas, there seems to be a trend to punish actors for the harm they …

Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries

Seattle University Law Review

The article explores the Crawford decision in the context of victimless prosecutions. Part II discusses current trends in victimless domestic violence prosecution and the power and control dynamics of domestic violence relationships, including how these dynamics relate to, and create the need for, victimless prosecutions. Part III discusses the Crawford decision. Part IV explores possible interpretations of Crawford within the context of victimless domestic violence prosecutions. Part V explains why courts should interpret Crawford in a way that allows prosecutors to continue to prosecute batterers without a participating victim.