Law Commons^™

Unlocking The Courthouse Door: Removing The Barrier Of The Plra’S Physical Injury Requirement To Permit Meaningful Judicial Oversight Of Abuses In Supermax Prisons And Isolation Units, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In recent years the number of inmates held in isolation in American prisons has increased dramatically. At the same serious abuses have occurred in these isolation units. These abuses, which include subjecting inmates to degrading, humiliating and unnecessary suffering, often do not cause physical injury. Even though constitutional rights are violated by these acts, federal courts have often failed to provide relief to victims of these abuses. The reason is that the Prison Litigation Reform Act (PLRA) deprives federal courts of the ability to provide relief from degrading and even torturous behavior if there is not physical injury. This article …

Preplea Disclosure Of Impeachment Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Response to R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429 (2011)

The Delinquent “Toddler”, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

Twenty-first century juvenile justice jurisprudence has focused on the criminal responsibility of adolescents, including, notably, the interface between psychological and neurological development and social accountability. The focus has led to a growing awareness that teenagers should not be equated with or held as accountable as adults. For example, several states, including Connecticut, Illinois, and Mississippi, have raised the age of criminal responsibility from 16 or 17 to 18, with a corresponding expansion of juvenile court jurisdiction. Of potentially greater significance, the principle of diminished criminal responsibility has gained credibility. Witness, for example, the US Supreme Court holding that capital punishment …

Educating Prosecutors And Supreme Court Justices About Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author reviews the Supreme Court decision in Connick v. Thompson and provides a course outline, including problems, for training prosecutors on their duty to disclose materially favorable evidence to the defendant under Brady v. Maryland.

Pretrial Procedures For Innocent People: Reforming Brady, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

In this article, the author proposes that the prosecution’s obligation to disclose exculpatory information to the defense be formalized by statute, court rule, or internal protocol in ways that would reflect the current state of our knowledge of and experience with both Brady and wrongful convictions. This would improve on the current ineffective constitutional protection—and any existing statutory or rule-based regimes—in several ways. First, such a formalized regime would require disclosure of all materials that are reasonably helpful to the defense. Second, unlike the constitutional doctrine, which provides no reliable mechanism for monitoring police disclosure to the prosecution, an accompanying …

Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor's charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA's Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …

Punishing Without Free Will, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article will argue that there are good moral reasons to conclude that the scientific plausibility of determinism ought to lead us to abandon the notion of free will. Contra P. F. Strawson and Moore, this Article suggests that rejecting free will does not undermine the human experience, and doing so is plausible and attractive because it would likely lead to more humane and efficient institutions of blaming and punishing.

When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

Consent Is Not A Defense To Battery: A Reply To Professor Bergelson, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

Professor Vera Bergelson expressed puzzlement over the fact that those who feel "trapped in the wrong body" can "consent to a sex change operation, which often involves the removal of healthy sexual organs," whereas those who would feel happier being amputees "cannot consent to amputation of an arm or a leg.” Bergelson is equally puzzled by the fact that a spouse may physically injure her partner pursuant to practices of religious flagellation, but she may not cause similar injuries pursuant to sadomasochistic sexual practices. The purpose of this brief essay is to explain why I believe that the aforementioned cases …

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …

Let The Sunshine In: The Aba And Prison Oversight, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

2010 may be remembered as the year in which prison oversight finally found a place on the national correction agenda, thanks in significant part to the attention that the American Bar Association has focused on this topic. In this article, we briefly describe the state of American prisons, trace the recent movement toward prison oversight, describe the rationale for oversight and the benefits it provides, and describe the contribution made to this effort by the ABA through the passage of its landmark resolution in 2008, through its Standards on the Treatment of Prisoners calling for prison oversight, and through the …

Returning Prosecutions To The States: A Proposal For A Criminal Justice Restoration Act, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The expensive and largely redundant Federal justice bureaucracy could be reduced to a fraction of its size by restoring to the states their traditional role of prosecuting crimes that fall under state jurisdiction. Returning criminal justice functions to the states can not only reduce the impact and effective reach of Federal power but can also achieve a surprisingly substantial decrease in Federal spending.

A small change in the wording of an existing Federal statute could accomplish the restoration.

This essay sets out and briefly analyses such a proposal.

Privacy Revisited: Gps Tracking As Search And Seizure, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the facts in People v. Weaver, the majority and dissenting opinions in the Appellate Division, Third Department, and the majority and dissenting opinions in the Court of Appeals. Part II addresses the question that has yet to be decided by the U.S. Supreme Court – whether GPS tracking of a vehicle by law enforcement constitutes a search under the Fourth Amendment. Part III addresses the separate question that the Court of Appeals did not address - whether the surreptitious attachment of a GPS device to a vehicle constitutes a seizure under the Fourth Amendment. …

Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The concept of free will is a problematic basis for assessing legal accountability.

First of all, free will could never have evolved in a world of ordinary biological pressures. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds …

Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses Imbler’s adoption of absolute immunity for prosecutors. Part II discusses Imbler’s extension of absolute immunity to a prosecutor’s violation of his disclosure duty under Brady v. Maryland. Part III describes the ease with which prosecutors are able to evade the Brady rule and the difficulty of enforcing compliance with Brady. Part IV discusses the absence of any meaningful sanctions to deter and punish prosecutors for willful violations of Brady. Part V proposes a bad faith exception to absolute immunity of prosecutors for Brady violations.

Doubting Free Will: Three Experiments, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This paper describes three experiments that cast doubt on the existence free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it.

While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As …

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.

Jurists For Jesus, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This article focuses on Jesus’ fundamental mandate to ―love your neighbor as yourself. These five words encompass two prongs: honoring every individual (yourself), and caring for the human community as a whole (Your neighbor). This article refers to these two fundamental prongs as the Jesus Principles. An individual does not need to be a Christian or otherwise religious to embrace the Jesus Principles; in fact, they are universal. Developing laws and policies consistent with the basic concept of love reflected in the Jesus Principles can guide us toward a more just society.

Autores Y Cooperadores, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Megan's Law And Sarah's Law: A Comparative Study Of Sex Offender Community Notification Schemes In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The United Kingdom developed a sex offender register and Sarah's Law' in an effort to keep communities safe from sex offenders. However, Sarah's Law is quite different from Megan's Law, particularly because there is no direct public access to the United Kingdom's Sex Offender Register. Part II of this article analyzes the history of sex offender registration and community notification under Megan's Law in the United States. Part III examines the United Kingdom's approach to sex offender registration and community notification via Sarah's Law. Part IV explores the distinctly different approaches to community notification in the United States and the …

Protecting Children On The Internet: Mission Impossible?, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article posits that the Williams Court properly upheld Congress' shift in focus from the images to the speech pandering them. The majority ruled that the inability to complete a crime because of a factual error is not a defense. Its reasoning should lay to rest lingering claims that child protection statutes require an actual child. Nevertheless, the Article explains that the Williams dissent essentially relied on legal impossibility in its finding that the PROTECT Act's pandering provision was unconstitutionally overbroad. In so doing, the dissent reflects the reluctance of many to accept the extent to which adults are seeking …

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the …

Avoiding Wrongful Convictions: Re-Examining The "Wrong-Person" Defense, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article reviews the history of the right to present a defense and closely examines the United States Supreme Court's modern analysis of that right. Part III analyzes the emergence of the right to present a defense that a third party committed the crime and concludes with a discussion of the Supreme Court's recent decision in South Carolina v. Holmes. Part IV then describes the current restrictive implementation of the wrong-person defense by the lower courts. Part V argues that the constitutional right to present a wrong-person defense is being insufficiently protected under current, arbitrary standards, and prescribes a constitutional …

A Short Overview Of The Statutory Remedies For The Wrongly Convicted: What Works, What Doesn't And Why, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

In The Name Of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (And Other Countries Don't), Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

For more than three decades, American prosecutors have been bringing criminal prosecutions against pregnant women based on their use of drugs while pregnant, with charges ranging from child abuse or neglect to murder. Almost all of these women are poor, and the vast majority are also women of color--many with histories of childhood sexual or physical abuse and mental disability. In all but three states-Alabama, Kentucky, and South Carolina--such prosecutions have been declared unconstitutional or the resulting convictions have been overturned. Nonetheless, prosecutions continue to be brought, in what can only be described as a crusade against pregnant women in …

Complementarity In Crisis: Uganda, Alternative Justice, And The International Criminal Court, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

In this Article, I take up a focused analysis of the Uganda prosecutions, considering both the interpretive dilemmas facing the Court and the efforts of Prosecutor Luis Moreno-Ocampo to address them. Part I provides a summary of events leading to the LRA arrest warrants and the recent peace negotiations. Part II turns to the text of the Rome Statute, with a focus on Article 19's framework for complementary jurisdiction and the Article 53 dictate that “interests of justice” may trump the admissibility of investigations and cases that otherwise meet all relevant statutory criteria. Although the ICC is structured to give …

The Eyewitness Conundrum: How Courts, Police And Attorneys Can Reduce Mistakes By Eyewitnesses, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Reducing the incidence of wrongful convictions based on eyewitness mistakes poses a difficult challenge to the criminal justice system. There is near-unanimity among courts and commentators that eyewitness mistakes account for more erroneous convictions than any other type of proof. It is therefore incumbent on every key participant in the criminal justice system - judge, prosecutor, police, and defense counsel - to use every available tool to protect an accused from being mistakenly identified by an eyewitness. For the judge, protecting the accused requires a willingness to give the jury special instructions on eyewitness identification and a willingness to allow …

Getting Real About Race And Prisoner Rights, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article explores the nexus of two stories central to contemporary American jurisprudence and--for tens of millions of citizens--central to the American experience: the rise of the “carceral state” through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning …

The Case For A Criminal Law Theory Of Intentional Infliction Of Emotional Distress, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Words hurt! Recent news stories about cyber bulling make clear that a word can cause as much pain as a punch. Unfortunately, the law redresses those who suffer injury from harmful speech through a series of seemingly innocuous remedies, including financial remuneration or retribution through minimal criminal penalties. The law stops, however, at imposing the same type of criminal punishment on those who intend to cause emotional harm through words, as it does those who intend to cause physical harm. In other words, legislatures and courts have been unwilling to elevate an actor’s intentional use of harmful words to the …