Law Commons^™

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Green Crimes In The Empire State: Analyzing The Criminal Enforcement Of Environmental Law In New York, Joshua Ozymy, Melissa Jarrell Ozymy

Pace Environmental Law Review

Ensuring compliance with federal and state environmental laws and deterring future offenses can require the application of criminal enforcement tools. Yet we have a limited understanding of how the criminal enforcement of environmental laws has progressed historically in The Empire State. To explore this phenomenon, we undertake content analysis of federal prosecution summaries for all environmental crime prosecutions stemming from U.S. Environmental Protection Agency criminal investigations from 1983 to 2019. We explore which federal environmental laws were violated, determine which charging statutes were used, analyze sentencing patterns, and illustrate the broader themes that emerge in such prosecutions over 37 years. …

Fine-Tuning: The Emergent Order-Maintenance Architecture Of Local Civil Enforcement, Brendan M. Conner

Pace Law Review

No abstract provided.

The Prosecutor In The Mirror: Conviction Integrity Units And Brady Claims, Lissa Griffin, Daisy Mason

Elisabeth Haub School of Law Faculty Publications

In Brady v. Maryland, the Supreme Court held that a prosecutor has a due process obligation to disclose exculpatory evidence that is material to guilt or punishment. The failure to fulfill this duty is particularly insidious because it bears directly on both whether an innocent defendant may have been convicted as well as on whether the adjudicatory process was fair. The failure to disclose exculpatory evidence has been characterized as “epidemic” and has been documented to have made a major, outsized contribution in cases that resulted in exonerations. It is not surprising, then, that conviction integrity units in prosecutor’s offices …

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Justice Delayed, Justice Denied? The Search For Accountability For Alleged Wartime Atrocities Committed In Sri Lanka, Aloka Wanigasuriya

Pace International Law Review

During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009. However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties. Several UN bodies found credible allegations that international crimes were committed …

Advancing Fundamental Principles Through Doctrine And Practice: Comments On Darryl Robinson, Justice In Extreme Cases, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

I am honored to comment on Darryl Robinson's terrific new book which makes an extraordinary contribution to the literature on international criminal law (ICL). Already an admirer of Robinson's work, I learned a lot from reading his book and find his approach convincing. Broadly speaking, there is not much, if anything, on which I disagree with Robinson. I share his criticisms of international criminal tribunal reasoning. I welcome the call for greater attention to deontic considerations. I agree on the importance of the fundamental principles that Robinson identifies, and I also agree that justifying these principles does not require consensus …

Nycla Justice Center Task Force: Solving The Problem Of Innocent People Pleading Guilty

Pace Law Review

No abstract provided.

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of …

The Devil In Recent American Law, L. Joe Dunman

Pace Law Review

Despite its secular aspirations, the American legal system is permeated by Christian and other religious ideas. One of the religious ideas that frequently appears in recent American law is the devil—the unholy antithesis of all that is good in the world. Called by many names, such as Satan, Lucifer, or the Antichrist, the devil is no stranger to the United States court system. The devil arises from the hot depths primarily in five contexts: (1) as a source of injury to reputation in defamation cases; (2) as a prejudicial invocation made during criminal trials to secure conviction, harshen sentences, or …

Unreasonable Revelations: God Told Me To Kill, Linda Ross Meyer

Pace Law Review

This Article focuses on one extreme example of the law’s response to unreasonable revelations that is starkly presented in a series of unsettling murders: those involving criminal defendants who claim they committed their crime because God told them to do it—known as “deific decree” cases. This example of the conflict between revelation and reason tests the limits of law’s ability to understand and countenance revelation when the stakes are highest. The deific decree cases also present the hardest epistemological problems, because the defendant claims that the experience of God’s command is self-authenticating—a position fundamentally at odds with both scientific and …

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

The Concrete Jungle: Where Dreams Are Made Of . . . And Now Where Children Are Protected, Samantha A. Mumola

Pace Law Review

The tragic and unsettling story of Kalief Browder has notably emerged as a prominent illustration of our criminal justice system’s historical failure to protect our youth. Kalief’s story gained massive media attention with the help of a TIME documentary series featured on Netflix and famous A-listers such as music artist Jay-Z and TV host Rosie O’Donnell. It is hard to ignore the fact that Kalief Browder was cheated by the system; he chose suicide to escape his demons, which developed after undeserved time spent at Riker’s – a place he would have never experienced had he initially been tried as …

Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, Alisa Smith

Pace Law Review

Since 1956, there have been three waves of scholarly attention on the misdemeanor courts. Despite this attention, misdemeanor courts remain understudied and overlooked. The object of this paper is to summarize the empirical research conducted over the last sixty years and identify the scholarly work that should be undertaken on the processing of misdemeanor offenders in our courts. Buoyed by the current interest in studying the misdemeanor courts, scholars should widen and deepen their study by replicating the work of others in a variety of jurisdictions, observing court proceedings, interviewing defendants and the courtroom workgroup, and assessing whether constitutional ideals …

Comrades Or Foes: Did The Russians Break The Law Or New Ground For The First Amendment?, Artem M. Joukov, Samantha M. Caspar

Pace Law Review

This Article discusses the recent decision by the United States Federal Government to indict more than a dozen Russian nationals for conspiracy to defraud the United States of America. The Government accused the Russians of staging protests, distributing false propaganda, and spreading political messages and ideologies online in an effort to affect the outcome of the 2016 Presidential Election. We argue that while the Defendants violated several other laws, the majority of the acts the Government classifies as a conspiracy to defraud the United States should not be considered criminal. Rather, these acts are protected political speech under the First …

International Law Of Nuclear Weapons Nonproliferation: Application To Non-State Actors, Imrana Iqbal

Pace International Law Review

International legal responses to the threat of nuclear terrorism by non-state actors have been many but often inconsistent, inadequate, and legally unsound. This Article argues in favor of resorting to successfully-implemented methods of dealing with similar crimes. International law has already expanded from its original statist conceptions and scope to include individuals, such as in international human rights norms and international humanitarian laws. In the latter, in particular, the law has expanded in the context of both international and non-international armed conflict. This Article argues that the advancement of law in these areas can lend much to efforts to bring …

#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in five parts. Part I reviews the history of the legal and social movement from gender-specific to gender-neutral statutory rape laws. This Part includes an exploration of critical scholarship responding to the Supreme Court's Michael M. decision. Part II explains the limitations of gender-specific legislation. This Part illustrates that there are two categories of gender-neutral statutory rape jurisdictions: age-differential statutes and arbitrary prosecution statutes. This Part also explores challenges to these statutes, particularly arbitrary prosecution statutes, on equal protection grounds. Part III provides empirical data that men are prosecuted at a rate four times greater than females …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …

Neuroscience, Justice And The "Mental Causation" Fallacy, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Mental causation is a foundational assumption of modern criminal justice. The law takes it for granted that wrongdoers “deserve” punishment because their acts are caused by intentions, reasons and other mental states. A growing body of neuroscience evidence shows, however, that human behavior is produced by observable physiological activity in the brain and central nervous system--all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior.

Despite the evidence, neuroskeptics insist that intentions, reasons and other mental states can play a causal role in producing human …

The Effect Media Has On Juror Bias, Tia Fasano

Honors College Theses

The purpose of the study was to illustrate the problems associated with juror bias and how the media contributes to it. The way the media portrays individuals, the language they use, and the pictures seen as affecting potential jurors when they determine verdicts of the people they hear about on the news. The study further investigates whether or not these jurors are influenced enough by the media to cause a bias detrimental to the defendant. The design of the study used multiple peer-reviewed sources, documentaries, and semi-structured interviews. Through these, information was gathered and analyzed. I found through the interviews …

A Gap In Causation? Punishing Polluters For Contributing To Climate Change & Increasing Violent Crime, Nicolette Pellegrino

Pace Environmental Law Review

Climate change will lead to an increase in violent crime. More rapes and violent felonies occur during the warm summer months than in cooler temperatures. As climate change progresses, there will be longer summers, higher temperatures, and thus, more violent crime. This Note examines whether American sanctions of environmental crimes that contribute to climate change should become more stringent given what we now know about the violent consequences of climate change. Part II of this Note describes the history and scientific evidence which proves that rising temperatures increase the rate of violent crimes. Part III reviews current regulations that deal …

Special Problems For Prosecutors In Public Corruption Prosecutions, Mimi Rocah, Carrie Cohen, Steve Cohen, Daniel Cort, Bennett L. Gershman

Pace Law Review

The focus of this panel is not so much on the academic part of McDonnell, the case law. Of course, you’ll hear the name McDonnell and we’ll talk about that.

But we’re trying to talk a little more broadly about public corruption prosecutions in general. Some of these are unique issues. You heard a little bit about them from the former people who have done them, what special unique problems are involved in them and challenges the prosecutors face and what effect, if any.

How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers

Pace Law Review

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution?

How Has Mcdonnell Affected Prosecutors’ Ability To Police Public Corruption? What Are Politicians And Lobbyists Allowed To Do, And What Are Prosecutors Able To Prosecute?, Vincent L. Briccetti, Amie Ely, Alexandra Shapiro, Dan Stein

Pace Law Review

The question posed to the panelists on the first panel is: How has McDonnell affected prosecutors’ ability to police public corruption? What can politicians and lobbyists do and what can prosecutors prosecute?

Primer, Samantha Conway, David Diab, Amanda Fiorilla, Eric Grossfeld

Pace Law Review

Discussion and history of public corruption statutes and the prosecution of public officials through McDonnell v. United States, 136 S. Ct. 2355 (2016).

Introduction, Mimi Rocah

Pace Law Review

On March 9, 2018, the Elisabeth Haub School of Law at Pace University hosted Public Corruption Prosecution After McDonnell, a symposium that brought together law enforcement, practitioners, academics and media that covers these cases to gain insight and input from these disparate groups. The Symposium convened three panels to discuss how McDonnell has affected prosecutors’ ability to police public corruption; to offer legislative responses to McDonnell; and to examine the inherently unique nature of public corruption prosecutions. A central aim of the day-long event was to simultaneously tackle these challenging issues while distilling complex legal analysis in a manner suitable …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

The Federal Criminal Forfeiture Statute: Reining In The Government’S Previously Unbridled Ability To Seize Pretrial Assets, Kristyn Fleming Francese

Pace Law Review

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that …