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Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The grand jury is a "much maligned" organ of the criminal justice system.' Regularly employed in only about half of the states and grudgingly tolerated in the federal system,2 the American grand jury for two centuries has been criticized as costly, ineffective, overly-compliant, and redundant. Prescriptions have ranged from reforms designed to improve the grand jury's performance of its traditional filtering and charging functions to the outright abolition of the grand jury. Consequently, much of the scholarly defense of the grand jury seemingly has done little more than attempt to justify its very existence.

This Article seeks to take the …

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Journal Articles

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

Policing From The Gut: Anti-Intellectualism In American Criminal Procedure, Brian J. Foley

Maryland Law Review

No abstract provided.

Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace

Student Articles and Papers

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms.

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2009. The change to Criminal Rule 7 deleted subdivision (c)(2), which required that the indictment include notice that the defendant has an interest in forfeitable property. Criminal Rule 32 now provides that the presentence report state whether the government is seeking forfeiture of property. Criminal Rule 32.2 received six amendments concerning criminal forfeiture. Criminal Rule 41 created a two-step process for seizing and reviewing electronic storage media. Further, of the Rules Governing § 2254 Proceedings, Rule 11 was created to make the requirements …

Databases, Doctrine, And Constitutional Criminal Procedure, Erin Murphy

Fordham Urban Law Journal

Over the past twenty years there has been an explosion in the creation, availability, and use of criminal justice databases. Large scale database systems now routinely influence law enforcement decisions ranging from formal determinations to arrest or convict an individual to informal judgments to subject a person to secondary pre-flight screening or investigate possible gang membership. Evidence gathered from database-related sources is now commonly introduced, and can play a pivotal proof role, in criminal trials. Although much has been written about the failure of constitutional law to adequately respond to the threat to privacy rights posed by databases, less attention …

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

They Keep It All Hid: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin

Articles & Chapters

The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been …

Innovation Or Renovation In Criminal Procedure: Is The World Moving Toward A New Model Of Adjudication?, Gerald S. Reamey

Faculty Articles

A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.

While this movement has not gone unnoticed, the pace of change has accelerated, …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin

Articles & Chapters

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution, David J. Rossman

Faculty Scholarship

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

Monetary Recoveries For State Crime Victims, Jeffrey A. Parness, Laura Lee, Ed Laube

Faculty Articles, Papers, and Other Scholarship

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously. These avenues often, but not always, have constitutional as well as statutory foundations. Unfortunately state crime victims often go without recovery. Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing. Unlike federal district courts, state criminal courts typically …

Deadly Dilemmas Ii: Bail And Crime, Larry Laudan, Ronald J. Allen

Chicago-Kent Law Review

This is another in a series of papers examining the interaction between the implications of the deadly dilemma of governing that virtually all governmental action involves unavoidable conflict between equally laudatory goals and the conventional way of thinking about social errors. Typically the pursuit of any particular goal has as its consequence precisely the kind of harm that is desired to be avoided. For example, serious felons are sent to prison in part to protect innocent parties from their future predations, but those same felons often prey upon fellow prisoners, including murder. Moreover, felonies committed in prison only begin the …

The Psychology Of Conflicts Of Interest In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

This article demonstrates that current Sixth Amendment jurisprudence fails to account for how defense lawyers respond to conflicts of interest in criminal cases. Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support. The result has been a confusing doctrinal landscape, which both relies upon and questions the ability of defense lawyers to address and resolve conflicts of interest.

This article fills the gap in existing literature by viewing conflicts of interest in criminal cases through the prism of behavioral economics. The research reveals that defense lawyers are subject to psychological biases that …

Modes Of Discretion In The Criminal Justice System, Roger Fairfax

Presentations

No abstract provided.

“The Judge Said, ‘Son, What Is Your Alibi …?” A Survey Of Alaska Criminal Discovery Principles, James Fayette

Alaska Law Review

No abstract provided.

Revisiting Prosecutorial Disclosure, Alafair S. Burke

Indiana Law Journal

After the exoneration of more than 200 people based on post-conviction DNA evidence, a growing movement against wrongful convictions has called increased attention to the prosecutorial suppression of material exculpatory evidence. Commentators frequently study prosecutorial failures to disclose as a form of intentional misconduct, coloring both the description of the problem and the recommended solutions. This Article, in contrast, explores how even ethical prosecutors might fail to disclose exculpatory evidence because off laws in the Brady doctrine itself-specifically, the Court's limitation of the doctrine to "material" exculpatory evidence. The materiality standard amplifies cognitive biases that distort even an ethical prosecutor's …

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. …

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang Ngov

Faculty Articles

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

What’S Wrong With Victims’ Rights In Juvenile Court?: Retributive V. Rehabilitative Systems Of Justice, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

While scholars have written extensively about the victims’ rights movement in capital and criminal cases, there has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victims’ rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the …

His Brain Has Been Mismanaged With Great Skill: How Will Jurors Respond To Neuroimaging Testimony In Insanity Defense Cases, Michael L. Perlin

Articles & Chapters

The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.

In The Sweat Box: A Historical Perspective On The Detention Of Material Witnesses, Carolyn B. Ramsey

Publications

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has …

Monetary Remedies For Victims During Illinois Criminal Cases, Jeffrey A. Parness, Laura Lee, Karen Blouin

Faculty Articles, Papers, and Other Scholarship

The Illinois Crime Victim's Rights Amendment, added to the Illinois Constitution by the legislature and the voters in 1992, includes a 'right to restitution'. The amendment spurred some new legislation, now within the Rights of Crime Victims and Witnesses Act. But most crime victims still have little chance for restitution or other monetary remedies during criminal cases. Other remedies include recoveries from a state fund guided by the Crime Victims Compensation Act and recoveries ordered at sentencing under the Unified Code of Corrections Act. The paper first examines the Illinois constitutional right to restitution and the three separate acts recognizing …

Wherefore Art Thou Guidelines? An Empirical Study Of White-Collar Criminal Sentencing And How The Gall Decision Effectively Eliminated The Sentencing Guidelines, S. Patrick Morin

The University of New Hampshire Law Review

[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff …