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Articles 1 - 8 of 8
Full-Text Articles in Law
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
All Faculty Scholarship
Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …
The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade
The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade
Scholarly Works
This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …
Under The Influence Of California's New Drunk Driving Law: Is The Drunk Driver's Presumption Of Innocence On The Rocks? , Douglas Caiafa, A. Randall Farnsworth
Under The Influence Of California's New Drunk Driving Law: Is The Drunk Driver's Presumption Of Innocence On The Rocks? , Douglas Caiafa, A. Randall Farnsworth
Pepperdine Law Review
On January 1, 1982, the new California drunk driving law went into effect. This law makes it a crime to drive a motor vehicle where one's blood alcohol level is .10 or more. The law also marks a legislative attempt to curtail the practice of plea bargaining in drunk driving cases and significantly increases the penalties imposed upon those convicted of drunk driving. This Comment will discuss the provisions of the new drunk driving law and examine its constitutionality.
Plain Talk About Plea Bargaining, Harry A. Ackley
Plain Talk About Plea Bargaining, Harry A. Ackley
Pepperdine Law Review
No abstract provided.
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Faculty Articles
The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …
Regulatory Crime: Solutions, Lucian Dervan
Regulatory Crime: Solutions, Lucian Dervan
Lucian E Dervan
On November 14, 2013, Professor Dervan was called to testify before the United States House of Representatives' Committee on the Judiciary Over-Criminalization Task Force. Available here is his written testimony. In his written testimony, Professor Dervan examines the phenomenon of over-criminalization, particularly in the regulatory area, and offers several recommended solutions for Congressional adoption. First, he recommends the adoption of a default rule for mens rea. Second, he recommends the adoption of a default rule applying mens rea to all material elements of an offense. Third, he recommends the codification of the Rule of Lenity. Finally, along with some additional …
White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian Dervan
White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian Dervan
Lucian E Dervan
Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available …