Law Commons^™

Recent Decision Note, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Prosecutorial Decriminalization, Erik Luna

Erik Luna

The article discusses the legal concept of prosecutorial decriminalization in the U.S. as of July 2012, focusing on an analysis of the use of criminal laws to enforce the public standards of morality in America. Penal codes and criminal sanctions are addressed, along with several reform measures aimed at restructuring a criminal law system in the U.S. which has reportedly been overburdened by overcriminalization. The use of the American judiciary system as a check on overcriminalization is mentioned.

The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn

J. Eric Smithburn

No abstract provided.

Proportional Mens Rea, Stephen F. Smith

Stephen F. Smith

No abstract provided.

Localism And Capital Punishment, Stephen F. Smith

Stephen F. Smith

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

Taking Strickland Claims Seriously, Stephen F. Smith

Stephen F. Smith

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line …

Religion And Procedure, Robert E. Rodes

Robert Rodes

God has no use for procedural rules since He knows the full truth and is able to exercise absolute justice simultaneously alongside complete mercy. This paper discusses the religious significance of legal rules of procedure in light of this truth. It finds that since we, unlike God, are inherently fallible, we are forced to implement procedures in the legal pursuit of our goals of truth, justice, and mercy. These procedures remain imperfect in implementing these goals, as compromises must often be made between competing values such as mercy on one hand and justice on the other. Nevertheless, though legal procedure …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Judith L Ritter

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Cooperating With The Prosecutor: How Many Motions Does It Take To Secure A Sentence That Is Less Than The Mandatory Minimum Provided By Statute?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

The Double Jeopardy Dilemma: Does Criminal Prosecution And Civil Forfeiture In Separate Proceedings Violate The Double Jeopardy Clause?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Justice Delayed Is Justice Denied: May A Prisoner's Challenge To Parole Revocation Be Delayed Until The Sentence Is Completed And Then Dismissed As Moot?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Multiple Punishment For Similar Crimes: Is The Double Jeopardy Clause Violated?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett

Richard W Garnett

No abstract provided.

What's On Your Mind? Imputing Motive In A Title Vii Case, An Analysis Of Bci Coca-Cola Bottling Co. V. Eeoc, Barbara J. Fick

Barbara J. Fick

This article examines the case E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, which was scheduled for argument before the Supreme Court, but was dismissed before that argument occurred.

International Perspective, Douglass Cassel

Douglass Cassel

No abstract provided.

"My Friend Is A Stranger": The Death Penalty And The Global Ius Commune Of Human Rights, Paolo G. Carozza

Paolo G. Carozza

This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded …

Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Retribution: The Central Aim Of Punishment, Gerard V. Bradley

Gerard V. Bradley

When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand required …

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

“Are There No Prisons?” Mental Health And The Criminal Justice System In The United States, Robert R. Rigg

Robert R. Rigg

Treating the mentally ill is a crisis in the criminal justice system throughout the United States. With the deinstitutionalization movement starting in the 1950’s, more and more individuals with serious mental illness were released into communities without treatment or services. As a result these individuals became involved in various criminal activities resulting in incarceration in jails and prisons throughout the country. This article explores the difficulties this influx of prisoners created in the criminal justice system, causing it to function as a defacto mental health provider without adequate resources. The application of Penrose’s Law, a theory that was developed …

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson

Stephen E Henderson

Toward A Right To Litigate Ineffective Assistance Of Counsel, Ty Alper

Ty Alper

No abstract provided.

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution, Jessica S. Peake

Jessica S Peake

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, Prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and RPEs of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Jennifer Daskal

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper

Mary Holper

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent, “purposeful,” and …