Law Commons^™

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

All Faculty Scholarship

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent constitutional …

Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar

Osgoode Hall Law Journal

Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Siyuan CHEN

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

Problematika Peninjauan Kembali Dalam Sistem Peradilan Pidana Pasca Putusan Mahkamah Konstitusi Dan Pasca Sema Ri No. 7 Tahun 2014 (Suatu Analisa Yuridis Dan Asas-Asas Dalam Hukum Peradilan Pidana), Seno Wibowo Gumbira

Jurnal Hukum & Pembangunan

Problems of extraordinary legal remedy on Reconsideration, especially in the criminal justice process in Indonesia following the Ruling of judicial review of the Constitutional Court Number 34 IPPU-XI I 2013 and SEMA Decree No. 7 of 2014 issued by the Supreme Court had the same problem juridical in contradictory with the principles both within the criminal justice system and the principle of the science of law in Indonesia, those principles include the principle of ne bis in idem, the principle of justice which one quick, simple and low cost, the principle of litis finiri oportet, …

Transparency And Comparative Executive Clemency: Global Lessons For Pardon Reform In The United States, Andrew Novak

University of Michigan Journal of Law Reform

This Article argues for transparency in the clemency process and contends that the concept of clemency as a benign sovereign’s “act of grace” is no longer appropriate in the modern world where executive action is subordinate to principles of constitutional due process and administrative equity. Despite calls for federal clemency reform in the United States, little comparative research examines clemency elsewhere in the common law world. This Article compares common law countries’ constitutional clemency mechanisms designed to promote openness, public and victim participation, and rational decision-making. In addition, this Article proposes four reforms to the U.S. pardon system that other …

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Research Collection Yong Pung How School Of Law

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

Judicial Review And The Exclusionary Rule, Morgan Cloud

Pepperdine Law Review

No abstract provided.

Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler

Michigan Law Review

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

Mapping Proportionality Review: Still A "Road To Nowhere", Rachel A. Van Cleave

Publications

This article examines how a majority of the Supreme Court went out of its way to vacate a punitive damages award in Philip Morris and further reinforced the inconsistency with which it applies the principle of proportionality. When it comes to punitive damages awards, a majority of Justices continue to convey distrust of juries and of trial and appellate court judges who review these awards. However, when it comes to terms of imprisonment, the Court has eschewed substantive review under the Eighth Amendment while insisting that the Sixth Amendment requires that all facts supporting an increase in a sentence be …

Reply Brief For Petitioner, Hamdan V. Rumsfeld, No. 04-702 (U.S. Jan. 03, 2005), Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …

"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave

Publications

Part I of this Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty. In this section, I argue for consistency within this area of the law. Some jurisprudence suggests that, because "death is different," proportionality review is appropriate only in the death penalty context, and is either not required or only applies in an extremely narrow example, such as life imprisonment for a parking ticket. Part II examines Supreme Court precedent that analyzes the question of proportionality of forfeitures and punitive damages awards. In the context of forfeitures, the debate …

The Supreme Court, Public Opinion, And The Role Of The Academic Commentator, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

A District Attorney's Decision Whether To Seek The Death Penalty: Toward An Improved Process, Jonathan Demay

Fordham Urban Law Journal

The most important variable affecting whether a defendant will be subject to the death penalty is often the particular ideology of the district attorney of a respective county. More subtle forms of arbitrariness, such as bias based upon race, gender and class, also pervade the process. Arguing that the dangers inherent in the present situation justify the imposition of controls over the exercise of prosecutorial discretion in the decision whether to seek the death penalty, Part I presents the nature and scope of prosecutorial discretion judicial review of that discretion and the influence that individual prosecutors can have in the …

International Human Rights Standards On Sexual Violence Against Women As They Apply To Pornography, Claudia Giunta

LLM Theses and Essays

The United Nations Fourth World Conference on Women was held in Beijing in September 1995, and represented an important step towards the achievement of equality for women. At the Conference, the progress made towards equality was acknowledged, but it was also acknowledged that many goals have not been achieved yet, and that cultural changes of fundamental importance remain to be made. Indeed, in many countries the cultural approach to violence and discrimination against women is quite fatalistic; they believe violence against women cannot be solved by laws. However, this approach overlooks the role played by societies in tolerating practices of …

Appellate Determinacy: The Sentencing Philosophy Of The United States Court Of Appeals For The Third Circuit, Gary S. Gildin

Villanova Law Review

No abstract provided.

Prosecutorial Discretion And Substantial Assistance: The Power And Authority Of Judicial Review - United States V. Wade, John S. Austin

Campbell Law Review

This Note analyzes the Wade case and argues that the Supreme Court correctly found that a district court can review any prosecutorial decision when it is based on an unconstitutional basis. First, the Note addresses the case history and background behind "substantial assistance" and the Guidelines. Second, it analyzes the reasoning of the Court: whether the ruling furthers the purpose of the Guidelines; whether protections under the Due Process Clause apply; whether the ruling is consistant with other holdings concerning analogous prosecutorial powers; and whether a threshold showing of unconstitutional bias is a necessary prerequisite before review. Third, it discusses …

Recent Decisions, Michigan Law Review

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Criminal Law And Procedure-Federal Courts - Substitution By Supreme Court Of Its Inferences Of Fact For Those Of The State Court, John S. Pennell

Michigan Law Review

The recent cases of Avery v. Alabama and Chambers v. Florida raise the interesting question of the conclusiveness of a fact finding of a state court upon the United States Supreme Court in a criminal trial when the accused claims that one of his constitutional rights has been impaired, and the holding of the state court is to the effect that on the facts presented such right has not been impaired. The case may arise in the United States Supreme Court in either of two ways. It may come up on appeal from a lower federal court denying a petition …