Law Commons^™

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

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No abstract provided.

Reflections And Perspectives On Reentry And Collateral Consequences, Michael Pinard

Michael Pinard

This essay addresses the continued and dramatic increase in the numbers of individuals released from correctional institutions and returning to communities across the United States. It provides a brief history of the collateral consequences of criminal convictions, and the ways in which these consequences impede productive reentry. It then highlights national and state efforts to address to persistent reentry obstacles and to better understand the range and scope of collateral consequences. It concludes by offering suggestions for reform.

Good Guys, Bad Guys -- And Miranda, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that we as a society must get beyond our single-minded focus on the Miranda warnings and find a better way to elicit accurate information from suspects while lowering the risk of false confessions.

Seeing The Forest Through The Trees: Thinking Critically About Mental Health Courts, John A. Bozza

John A Bozza

The almost universal acceptance of the problem-solving court concept by both the courts and the academic community provides a good example of the hazards of the bandwagon effect on the de-velopment of public policy. The proponents of therapeutic juris-prudence have successfully promoted the adoption of these pro-grams by repeating and then having others repeat a mantra of success that grossly belies reality and ignores the compelling is-sues they raise. Not surprisingly, this has led to the develop-ment of an extensive bureaucracy fueled almost entirely by fed-eral money and encouraged by cheerleaders entrenched in the self-serving subculture of therapeutic jurisprudence. Unfortunately, …

Making Sense Of Reasonable Doubt: Understanding Certainty, Doubt And Rule-Based Bias Filtering, Yali Corea-Levy

Yali Corea-Levy

The standard of “proof beyond a reasonable doubt” is meant to, at least in part, ensure that the government meets the highest practical standard of proof possible before imposing criminal penalties on persons. This article argues that the standard, as currently applied in trial settings, does not succeed in its goal of being the vanguard of prudence and equity. Specifically, it falls short of this high standard because of its vagueness coupled with our cognitive peculiarities, including our tendency to feel certain about facts more easily than we should. This article describes the problem and ultimately suggests a relatively simple …

Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd

Reid G. Fontaine

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …

Punishment As Contract, Claire Oakes Finkelstein

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This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

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No abstract provided.

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

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No abstract provided.

Do “Tough On Crime” Politicians Win More Elections? An Empirical Analysis Of California State Legislators From 1992 To 2000, Steven A. Krieger

Steven A. Krieger

Do “tough on crime” politicians win more elections? Conventional wisdom suggests that they do. After all, who was the last public official to win an election based on a “soft on crime” platform? Correspondingly, this unjustified and widespread belief among legislators (and their strategists) makes it extremely difficult for progressive criminal justice bills to become law. There is no empirical literature, however, to support or deny this conventional political wisdom.

A regression analysis was used to answer (1) whether legislators’ election results were impacted by their voting records (based on an assigned crime score) or constituent support for a ballot …