Digital Commons Network^™

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …

A Public Choice Theory Of Criminal Procedure, Keith N. Hylton, Vikramaditya Khanna

Faculty Scholarship

We provide an additional justification for the pro-defendant bias in Anglo-American criminal procedure that supplements the most commonly forwarded justifications to date. The most commonly forwarded rationale for the prodefendant bias is that the costs of false convictions-specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions-are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of prodefendant procedural rules. Under our justification, prodefendant protections serve primarily as constraints on the costs associated with rent seeking in the law enforcement process. The theory developed …

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Duke Law Journal

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown

ExpressO

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …

The Political Economy Of Application Fees For Indigent Criminal Defense, Wayne A. Logan, Ronald F. Wright

Scholarly Publications

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

A Tribute To Professor Charles J. Ogletree, Jr., Roger Fairfax

Scholarly Articles in Law Reviews & Journals

I recall vividly how, as a junior at Harvard College, I landed a coveted position on Professor Ogletree's office hours list. My ostensible purpose for taking an office hours slot away from a deserving law school student was to discuss the college seminar paper I was writing on the District of Columbia statehood movement. Although I did leave that meeting with several fruitful research leads, I was much more satisfied with achieving my true aim-to meet in person this man about whom I had heard so many wonderful things. The professor did not disappoint. As I sat in his office-the …

The Model Federal Sentencing Guidelines Project: A Simplified Sentencing Grid, Model Sentencing Guidelines §1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the first of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines", available on SSRN at http://ssrn.com/abstract=927929.

Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter

Faculty Publications

This analysis begins with an examination of the Court's Eighth Amendment jurisprudence and how this impacts the procedures that are required in a capital trial. Then we will present a brief review of habeas corpus law and the barriers that have been imposed to restrict federal court review of claims. We will explain how AEDPA modified the ability of a petitioner to get evidentiary hearings and imposed restrictions on the filling of second or successive petitions. Then, we will look at circumstances in which claims of innocence may be raised in a petition for habeas corpus. Finally, we will compare …

Secret Evidence Is Slowly Eroding The Adversary System: Cipa And Fisa In The Courts, Ellen Yaroshefsky

Hofstra Law Review

No abstract provided.

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 …

Judicial Participation In Plea Negotiations: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Current rules in most U.S. jurisdictions prohibit judges from becoming involved in plea negotiations and limit the judges' role to reviewing a plea bargain once it is presented by the parties. The enclosed article surveys three systems that provide for more significant judicial involvement - Germany, Florida, and Connecticut - and suggests that a judge's early input into plea negotiations can render the final disposition more accurate and procedurally just. Based on interviews with practitioners and a review of the case law, the article outlines a model for greater judicial involvement in plea negotiations.

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court's exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of Criminal …

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 …

Instituting Innocence Reform: Wisconsin's New Governance Experiment, Katherine R. Kruse

Scholarly Works

The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The …

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 …

Taking Facts Seriously–Again, William Twining

Journal of Legal Education

No abstract provided.

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 …

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 …

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

ExpressO

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

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 …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Maryland Law Review

No abstract provided.

Through The Looking-Glass At The Brady Doctrine: Some New Reflections On White Queens, Hobgoblins, And Due Process, Eugene Cerruti

Kentucky Law Journal

No abstract provided.

Yale Kamisar: A Principled Man For All Seasons, Douglas A. Kahn

Articles

Yale Kamisar began his distinguished career as a law professor in 1957 at the University of Minnesota Law School. For three years prior to joining the Minnesota faculty, Yale had been an associate with the Washington, D.C. law firm of Covington & Burling specializing in antitrust law. Understandably, Yale and Minnesota assumed that he would devote the major part of his research and teaching to antitrust. At that time, the study of criminal law was near the bottom of the hierarchy of law school topics, and so young faculty often were assigned the task of teaching criminal law as the …

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state …

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.

Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham

Law and Contemporary Problems

If the punishment is taken out of the process, and the processes of criminal justice become effective at restoration--and if rigorous empirical research might show that a restorative process costs less money and produces greater public safety--that would be a result everyone would embrace.

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …