Law Commons^™

Misdemeanor Appeals, Nancy J. King, Michael Heise

Cornell Law Faculty Publications

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts …

What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq

Cornell Law Faculty Publications

Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be punished …

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question offact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

Agency And Insanity, Stephen P. Garvey

Cornell Law Faculty Publications

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.

According to the lost-agency theory, a person lacks a sense of …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Cornell Law Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

The neuroscience of empathy provides one more reason to believe that the decision to sentence another human being to death is inevitably an arbitrary one, and one that cannot be divorced from either race or caprice. While we can tinker with aspects of capital trials that exacerbate caprice and discrimination stemming from empathy, we cannot alter basic neural responses to the pain of others and therefore cannot rationalize (in either sense of the word) empathic responses.

The Changing Market For Criminal Law Casebooks, Jens David Ohlin

Cornell Law Faculty Publications

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as …

Channeling Unilateralism, Maggie Gardner

Cornell Law Faculty Publications

When crime reaches across borders to threaten human security or undermine democracy, states often respond by adopting multilateral treaties that obligate each of them to suppress the transnational crime at home. These treaties help, but only to the extent that parties comply with them. Because states generally cannot enforce their laws outside their own territory, transnational criminals can evade prosecution as long as some states are unable or unwilling to meet these treaty commitments. One solution for improving compliance with these treaties may be, counterintuitively, more unilateralism. Using case studies on transnational bribery and drug trafficking, as well as thick …

The Death Penalty: Should The Judge Or The Jury Decide Who Dies?, Valerie P. Hans, John H. Blume, Theodore Eisenberg, Amelia Courtney Hritz, Sheri L. Johnson, Caisa Elizabeth Royer, Martin T. Wells

Cornell Law Faculty Publications

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977– 2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, …

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily C. Paavola

Cornell Law Faculty Publications

This article examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.

Authority, Ignorance, And The Guilty Mind, Stephen P. Garvey

Cornell Law Faculty Publications

No abstract provided.

Searching For The Hinterman: In Praise Of Subjective Theories Of Imputation, Jens David Ohlin

Cornell Law Faculty Publications

How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required though their …

Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

Targeting And The Concept Of Intent, Jens David Ohlin

Cornell Law Faculty Publications

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …

The One Or The Many, Jens David Ohlin

Cornell Law Faculty Publications

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective …

Assessing The Control-Theory, Jens David Ohlin, Elies Van Sliedregt, Thomas Weigend

Cornell Law Faculty Publications

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the …

How Folk Beliefs About Free Will Influence Sentencing: A New Target For The Neuro-Determinist Critics Of Criminal Law, Emad H. Atiq

Cornell Law Faculty Publications

Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about "free will" that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law's assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. …

Was Ellen Wronged?, Stephen P. Garvey

Cornell Law Faculty Publications

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority is has depends on how well it adheres to the demands of morality inasmuch as morality is the only …

Is Jus In Bello In Crisis?, Jens David Ohlin

Cornell Law Faculty Publications

It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following essay, an introduction to the Drone Wars symposium of the Journal, catalogues today’s most pressing disputes regarding international humanitarian law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

The Delaware Death Penalty: An Empirical Study, Sheri Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells

Cornell Law Faculty Publications

For the last five years, we have conducted an empirical study of the “modern era” of capital punishment in Delaware. By “modern era,” we refer to the time period after the Supreme Court’s 1972 decision in Furman v.Georgia, which invalidated all then-existing state death penalty regimes. Some readers might ask, “Why Delaware?” They might observe that it is a small state and is not a significant national player in terms of death sentences imposed or death row inmates executed. While both are true, several features of Delaware’s capital punishment system intrigue us. First, Delaware has a high death sentencing rate. …

Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin

Cornell Law Faculty Publications

Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that …

Piracy Prosecutions In National Courts, Maggie Gardner

Cornell Law Faculty Publications

At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the …

Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …

Unwell: Indiana V. Edwards And The Fate Of Mentally Ill Pro Se Defendants, John H. Blume, Morgan J. Clark

Cornell Law Faculty Publications

A Normative Theory Of The Clean Hands Defense, Ori J. Herstein

Cornell Law Faculty Publications

What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD’s primary norm. Yet, while the CHD may at times further court integrity it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: …

Joint Intentions To Commit International Crimes, Jens David Ohlin

Cornell Law Faculty Publications

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls …

Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, …

Bowman Lives: The Extraterritorial Application Of U.S. Criminal Law After Morrison V. National Australia Bank, Zachary D. Clopton

Cornell Law Faculty Publications

No abstract provided.