Law Commons^™

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 …

Anthrax Hoaxes, Ira Robbins

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: "[Y]ou are a disgusting piece of dirt."' Judge Steven Shutter, a county judge in South Florida, used these words to describe a twenty- four-year-old woman whom he labeled a terrorist2 and who was condemned by the media.3 Aside from name-calling, Judge Shutter raised the woman's bail from $3,500 to $25,000 when he learned the nature of the offense, 'just in case" the woman might be able to afford the lower bond.4 Given the strength of Judge Shutter's animosity toward her, one might assume that Yasmin Kassima Sealey- Doe had provided assistance to the terrorists who attacked the World Trade …

The Next Era Of Sentencing Reform, Steven L. Chanenson

Working Paper Series

This article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.

The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, …

Retroactivity Of New Rules Of Constitutional Law: Why The Supreme Court Should Have Overturned Warren Summerlin's Unconstitutional Death Sentence, Sarah R. Green

William & Mary Bill of Rights Journal

No abstract provided.

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

Anthrax Hoaxes, Ira P. Robbins

Ira P. Robbins

Telling Stories And Keeping Secrets, Abbe Smith

University of the District of Columbia Law Review

No abstract provided.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

An Empirical Study Of Public Defender Effectiveness: Self-Selection By The ‘Marginally Indigent’, Morris B. Hoffman, Paul H. Rubin, Joanna M. Shepherd

ExpressO

Abstract: An econometric study of all felony cases filed in Denver, Colorado, in 2002, shows that public defenders achieved poorer outcomes than their privately retained counterparts, measured by the actual sentences defendants received. But this study suggests that the traditional explanation for this difference—under-funding resulting in overburdened public defenders—may not tell the whole story. The authors discovered a large segment of what they call “marginally indigent” defendants, who appear capable of hiring private counsel if the charges against them are sufficiently serious. When the sentence data was controlled for the seriousness of the charges, however, public defenders still performed more …

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …

Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume

Cornell Law Faculty Publications

Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment.

This article takes a different approach. …

Discrimination In Sentencing On The Basis Of Afro-Centric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

ExpressO

For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person’s Afro-centric features. Section I of the article describes a line of social science research that shows that a person’s Afro-centric features have a strong biasing effect on judgment such …

Police Departments Should Record Custodial Interrogations, Robert K. Calhoun, Susan Rutberg

Publications

No abstract provided.

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy

ExpressO

The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

This Article focuses on the question, how should policymakers aiming to minimize the cost of sanctioning utilize legal and nonlegal sanctions when designing a system of criminal sanctions. After presenting the general economic case for the use of nonlegal sanctions the article turns to present a model of shaming, which unlike existing models, incorporates the endogenous effects of legal and nonlegal sanctions. This model demonstrates that tailoring an efficient regime that combines legal and nonlegal sanctions might be more difficult than previously perceived by law and economics scholars. A specific case study presented in this article is of the current …

Apprendi's Limits, Roger Craig Green

ExpressO

This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.

State, Be Not Proud: A Retributivist Defense Of The Commutation Of Death Row And The Abolition Of The Death Penalty, Dan Markel

ExpressO

In the aftermath of Governor Ryan's decision last year to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan’s action was a “grave injustice” and, from a retributivist perspective, “an unmitigated moral disaster.” This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide …

Jurisprudence: Due Process Concerns For The Underrepresented Domestic Violence Victim, Rebecca Fialk, Tamara Mitchel

Buffalo Women's Law Journal

No abstract provided.

Double Jeopardy And The Death Penalty: A Fundamental Constitutional Protection With Life Or Death Consequences, Kristen Lindsay Todd

Campbell Law Review

What is the effect of a deadlocked jury in a sentencing hearing for the application of the death penalty on the termination of jeopardy? This comment will explore this issue as presented in Sattazahn v. Pennsylvania, and analyze not only the arguments made in both the majority and dissenting opinions, but other considerations which arise when deciding if double jeopardy protections should apply. Also considered in the comment is the effect of the Sattazahn decision on future criminal defendants. What consequences will this decision have for the death row defendant when trying to decide whether to appeal his possibly erroneous …

Scarlet Letter Punishment For Juveniles: Rehabilitation Through Humiliation?, Bonnie Mangum Braudway

Campbell Law Review

This comment begins by discussing the historical development of the juvenile justice system and society's use of shaming penalties. In Section III, it will point out the dangers of using shaming penalties on juvenile offenders. Section IV will explore how the highest courts in two major jurisdictions may handle an appeal from a fictional juvenile sentenced to a shaming punishment. Finally, the comment will discuss possible improvements in the juvenile justice system.

Trends In The Murder Of Juveniles: 1980-2000, Us Department Of Justice

Juvenile Justice Bulletin

No abstract provided.

International Criminal Court & India: Some Questions & Answers, Saumya Uma

Saumya Uma

This book was an outcome of an attempt to fill the “information gap” presently faced in making the ICC meaningful to civil society in India. It is based on questions that are frequently raised during workshops that the ICC-India campaign has conducted in various parts of the country. The contents of the book are in the form of questions and answers, and the book explains complex issues in a simple language. The publication is specially intended for Indian human rights organizations, activists and legal professionals engaged in campaigns on law and policy reform issues on human rights. This publication forms …

"The Power To Govern Men And Things": Patriarchal Origins Of The Police Power In American Law, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Hoist With Their Own Petard?, Steven L. Chanenson

Working Paper Series

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

7. The Supreme Court And Reluctant Witnesses: Crawford V. Washington., Thomas D. Lyon

Thomas D. Lyon

Flouting The Law, Janice Nadler

ExpressO

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

A Review Of Parliamentary Privilege With An Approach To Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The necessity of immunity of parliament and its Members has led to determine and assure particular privilege in the Constitutions or ordinary laws in the great majority of countries. This legal institution is to provide freedom of speech and to maintain the independence of representatives in the exercise of their duties without undue interference or fear.

To define and justify the necessity of it, different theories like "the prestige of representatives' legal personality" and "doctrine of necessity" have been introduced.

The legal supports, which observe the parliamentary privilege, can be generally studied in two categories with distinct descriptions and effects; …