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The Challenge Of Motive In The Criminal Law, Elaine M. Chiu

Faculty Publications

The purchase of illegal drugs by an undercover police officer is commonly known as a “buy and bust” operation. In the twenty-first century, the stakes in the longstanding war on drugs are high as law enforcement and national security agencies join forces to confront the disturbing ties between terrorism and illegal narcotics. In addition to being a weapon in the arsenal of law enforcement, the buy and bust operation also tells an interesting story about motive in the criminal law. This article uses the simple street sale to demonstrate how the criminal law suffers from its ambivalent attitude towards the …

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …

Apprendi, Blakely And Federalism, Peter B. Rutledge

Scholarly Works

The Clark Y. Gunderson Lecture is a memorial to a man who devoted his life to legal education and spent thirty years teaching at the Law School. It is supported by a trust fund in the University of South Dakota Law School Foundation established principally by Colonel Gunderson's family. Professor Rutledge delivered the 2004 Gunderson Lecture at the Law Review's Symposium on Sentencing and Punishment, which took place at the Law School on November 5, 2004. What follows is an adapted version of Professor Rutledge's lecture.

The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law Review

The boundaries of the criminal justice system are eroding. A vast amount of relatively innocuous behavior is now criminalized. The line between criminal penalties and administrative sanctions is dissolving, as criminal law relaxes its mens rea requirements and government bureaucracies aggressively pursue regulatory violations. Distinctions between criminal and civil forfeiture, contempt, and deportation proceedings have been vanishingly subtle for some time. Perhaps the most serious assault on the integrity of today's criminal justice system, however, is the increasing prominence of the "dangerousness criterion" as justification for confinement by the government. Governmental deprivations of liberty have usually been the province of …

Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe

Faculty Scholarship

No abstract provided.

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

The Criminal Defence Lawyer's Role, David Layton

Dalhousie Law Journal

Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo

Faculty Publications

In the law school classroom, the Socratic method of legal analysis removes a dispute at issue in a given case from its sociocultural context and takes the cultural backgrounds of the parties into account only when they serve the legal argument. The language of the law commands law students to siphon off the emotional and cultural content because of the enduring belief that the law is neutral and impartial. Accordingly, cultural conflicts are deemed irrelevant to legal analysis because laws are unbiased and culture-blind. This detached outlook has been termed perpectivelessness to denote a neutral, odorless, colorless non-perspective.

This essay …

The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington

University of Arkansas at Little Rock Law Review

No abstract provided.

Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …

Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii

Faculty Publications

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …

Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts

Fordham Urban Law Journal

Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. Indeed, some states have heeded the call. But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to …

Toward An Indigenous Jurisprudence Of Rape, Sarah Deer

Faculty Scholarship

This article sets forth some preliminary issues and perspectives for the development of indigenous models of rape jurisprudence. Part I examines the reasons for and importance of developing an indigenous jurisprudence of rape. Part II addresses tribal jurisdiction issues, particularly the current limitations on tribal authority. Part III provides a historical context for the issue, including examples of the role of colonization in the responses to sexual violence. Part IV shares some visions for the development of a contemporary jurisprudence of rape for indigenous nations.

Piercing The Prison Uniform Of Invisibility For Black Female Inmates, Michelle S. Jacobs

UF Law Faculty Publications

In Inner Lives: Voices of African American Women In Prison, Professor Paula Johnson has written about the most invisible of incarcerated women — incarcerated African American women. The number of women incarcerated in the United States increased by seventy-five percent between 1986 and 1991. Of these women, a disproportionate number are black women. The percentages vary by region and by the nature of institution (county jail, state prison or federal facility), but the bottom line remains the same. In every instance, black women are incarcerated at rates disproportionate to their percentage in the general population. In Inner Lives, …

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

United States V. Gayle, Christine Aubin

NYLS Law Review

No abstract provided.

Remarks At The Investiture Of Eric M. Freedman As The Maurice A. Deane Distinguished Professor Of Constitutional Law, November 22, 2004, Anthony G. Amsterdam

Hofstra Law Review

No abstract provided.

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

Ambivalence About Treason, George P. Fletcher

Faculty Scholarship

Betrayal and disloyalty are grievous moral wrongs, yet today when the disloyal commit treason we seem reluctant to punish them. John Walker Lindh fought for the Taliban with full knowledge that it was engaged in hostilities against the United States. It should not have been so difficult to prove by two witnesses to the overt act, as the Constitution requires, that he adhered to the enemy giving them aid and comfort. Admittedly, there were legal problems about whether the Taliban as an indirect enemy in an undeclared war could qualify as the enemy in the constitutional sense. But there was …

A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White

Publications

No abstract provided.

Families And The Moral Economy Of Incarceration, Donald Braman

GW Law Faculty Publications & Other Works

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa's story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system's response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a …

Teaching Susan Glaspell's A Jury Of Her Peers And Trifles, Marina Angel

Journal of Legal Education

No abstract provided.

Rethinking Theft Crimes In Virginia, John G. Douglass

University of Richmond Law Review

No abstract provided.

To Catch A Killer: Roadblocks And The Fourth Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …