Law Commons^™

Appellate Review Of Sentences: Reconsidering Deference, Michael O'Hear

Michael O'Hear

For the past three decades, the national debate on sentencing policy has focused on the strengths and weaknesses of mandatory guidelines, with guidelines proponents arguing that unfettered judicial discretion at sentencing violates rule-of-law values. However, the number of states with mandatory guidelines, never a majority, has been declining in recent years, and even the federal system switched from mandatory to advisory guidelines in 2005. The trend away from mandatory guidelines has prompted renewed interest in the potential for appellate review of sentences to address rule-of-law concerns. But the appellate courts themselves have long resisted robust review on the ground that …

Why March To A Uniform Beat?: Adding Honesty And Proportionality To The Individualized Tunes Of Federal Sentencing, Jelani Jefferson Exum

Jelani Jefferson Exum

The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker , and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Chris Jenks

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

Unwitting Sanctions: Understanding Anti-Bribery Legislation As Economic Sanctions Against Emerging Markets, Andrew B. Spalding

Andrew B Spalding

Although the purpose of international anti-bribery legislation such as the U.S. Foreign Corrupt Practices Act is to deter bribery, empirical evidence demonstrates a more problematic effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond deterring bribery and actually deters investment. Drawing on literature from political science and economics, this article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCPA enforcement shows that these sanctions have most often occurred in emerging markets, where historic opportunities for economic and social development otherwise …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman

Frank O. Bowman III

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Chris Jenks

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew

Marla S. Carew

"Discretion and Deterrence in Tax Sentencing after Rita, Gall and Kimbrough - Opportunities for Alternative Sentences and Potential Abuses" is a rare, comprehensive look at the Sentencing Guidelines as applied specifically to tax (not general white collar) sentencing cases, including application through the 2009 Tomko opinion, and the public policy and legislative intent issues raised by sentencing criminal tax defendants in the early 21st Century.

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

Abstract The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate …

Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough - Opportunities For Alternative Sentences And Potential Abuses, Marla S. Carew

Marla S. Carew

The Supreme Court's opinions regarding the Sentencing Guidelines, availability of judicial discretion in sentencing, and the goals of specific and general deterrence have changed the landscape of criminal tax sentencing since Booker, Rita, Gall and Kimbrough.

The Federal Response To A Tragic Teen Suicide: The Stretching Of A Statute To Punish Cyber-Harassment, The Groundbreaking Trial, Implications For Everyone, And Suggestions For The Future., John M. Ivancie

John M Ivancie Jr.

This paper revolves around the novel use of the federal Computer Fraud and Abuse Act to prosecute a Missouri woman, who, with her high-school-aged daughter, and a teenage employee created a fake MySpace.com account to get information about, and harass the daughter’s teen-aged friend. This harassment eventually led to that young girls suicide. No local law was broken by the trio’s actions, and thus, there was nothing local law-enforcement authorities could do. Federal prosecutors in California did respond and charged the mother under the Computer Fraud and Abuse Act, a Federal anti-hacking statute. The way prosecutors used the statute is …

A Kiss Is Just A Kiss, Or Is It? A Comparative Look At Italian And American Sex Crimes, Michael Vitiello

Michael Vitiello

A Kiss is Just a Kiss, or is it? A Comparative Look at Italian and American Sex Crimes Abstract: Ask an American about Italian sex offenses and you are likely to hear about the case in which a court found that a woman wearing tight jeans cannot be raped. Americans largely assume that the male dominated Italian culture does not provide significant protection for women against unwanted sexual advances. Surprisingly, at least to co-author Vitiello, Italian courts have been quite protective of women in some recent decisions. This article is a conversation between two criminal law scholars, one Italian and …

From National Human Rights Action Plan 2009-2010 To Read Chinese Government’S Attitude Toward The New Criminal Procedure Reform, Bo Zong

bo zong

On April 13, 2009, China issued National Human Rights Action Plan 2009-2010 for the first time, which reflected Chinese government’s attitude toward the new criminal procedure reform. This plan brought some procedural rights of criminal procedure into human rights scope, emphasizing the importance of procedural justice in criminal procedure, and this plan paid more attention to the concept foundation of criminal procedure reform, making special human rights education plan. Moreover, this plan showed that China respected the obligation of international treaties. Those new movements will undoubtedly promote criminal procedure reform in China. However, it’s more important to start coordinating different …

“Taking Lives: How The United States Has Violated The International Covenant Of Civil And Political Rights By Sentencing Juveniles To Life Without Parole”, Marina A. Magnuson

Marina A Magnuson

In the wake of the Supreme Court’s recent decision in Roper v. Simmons, which outlawed death sentences for juveniles, several human rights organizations have begun to question the legality of life sentences without parole for juvenile offenders. I will explore the issue of life sentences without the possibility of parole for juvenile offenders and how they violate specific articles of the International Covenant on Civil and Political Rights (ICCPR). The United States ratified the ICCPR in 1992. However, it reserved the right, in exceptional circumstances, to treat juveniles as adults.

My comment will begin with a brief discussion of the …

Judging Jena's Da: The Prosecutor And Racial Esteem, Andrew Taslitz

Andrew E. Taslitz

In the Jena 6 case, six African-American high school students were arrested for assault charges allegedly arising out of a series of confrontations between black and white students stemming from a black student's sitting under the "white tree" on school grounds. The Jena prosecutor successfully arranged for one of the Jena 6 to be tried as an adult, where he was convicted and exposed to the potential of a very harsh sentence. The prosecutor did not, however, proceed, or not proceed as harshly, against several white students who were purportedly involved in violence or threats of violence against black students. …

The Exxon Valdez Case And Regularizing Punishment, Jeffrey L. Fisher

Jeffrey L Fisher

In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore …

Dangerous Data: The Use And Abuse Of Gang Databases, Heather Walczak

Heather Walczak

No abstract provided.

Wading Through The Morass Of Modern Federal Habeas Review Of State Capital Prisoners' Claims, Casey C. Kannenberg

Casey C Kannenberg

In July of 2007, Attorney General Alberto R. Gonzales called for comments on his proposed rulemaking on the Certification Process of State Capital Counsel Systems. The response was an overwhelming condemnation not only of the Attorney General’s proposed rules, but also of the current state of modern federal habeas corpus review of state capital prisoners’ claims. Notwithstanding this criticism, the Attorney General largely ignored the feedback and, in December of 2008, issued final regulations that are virtually identical to the proposed regulations. Why did the Attorney General ignore this incredible opportunity to create a sense of clarity and progress in …

The Neuropsychology Of Justifications And Excuses: Some Problematic Cases Of Self-Defense, Duress And Provocation, Theodore Y. Blumoff

Theodore Y. Blumoff

In a famous address to the Aristotelian Society, Professor J. L. Austin provided dictum that has become a part of the conventional wisdom in the jurisprudence of our criminal law. His thesis simultaneously acknowledges the evident moral distinction between justifications and excuses, on the one hand, and the tendency, on the other, for the two doctrines to overlap and confound. From the perspectives of moral philosophy and jurisprudence, the distinction is clear. Justifications are socially approved (or, at least, not disapproved); excuses are not approved, but they obtain because the actor’s conduct reflects a substantial (and therefore judicially acknowledged) cognitive …

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

The Content/Envelope Distinction In Internet Surveillance Law, Matthew J. Tokson

Matthew J Tokson

Whether a component of an Internet communication is classified as “content” or “envelope” information determines in large part the privacy protection it receives under Constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications—from email subject lines to Web browsing data. As a result, the level of legal protection afforded to such communications remains a vexing and unresolved question of Internet law. This article develops a legal framework for distinguishing content from envelope information in unique areas of Internet communications. Drawing on a practical …

What We Can Learn About Appeals From Mr. Tillman's Case: More Lessons From Another Dna Exoneration, Giovanna Shay

Giovanna Shay

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman’s case is a paradigmatic DNA exoneration—involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This article uses the published opinions affirming Mr. Tillman’s conviction—particularly his direct appeal to the Connecticut Supreme Court and his appeal from the state habeas proceeding—to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman’s exoneration reveal any …

The Curious Case Of Honest Services Fraud: How Consolidating The Circuits Could Define The Borders § 1346, Jorge R. Delgado

Jorge R Delgado

No abstract provided.

"I Agree" To Criminal Liability: Lori Drew's Prosecution Under § 1030(A)(2)(C) Of The Computer Fraud And Abuse Act, And Why Every Internet User Should Care, Nicholas R. Johnson

Nicholas R. Johnson

This article argues that Lori Drew's prosecution for cyberbullying under the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et. seq., represents too broad an application of that statute, which was passed by Congress in 1984 as an anti-hacking provision. More fundamentally, it argues that violation of a public website's terms of service should not constitute "unauthorized access" sufficient to trigger criminal liability under the Act. Such an narrow reading is in line with Congressional intent, as well as traditional notions of due process and statutory interpretation.

“He Speaks Not, Yet He Says Everything; What Of That?” Text, Context, And Pretext In State V. Jeffrey Dahmer., Greg O'Meara,

Greg O'Meara,

In State v. Dahmer, the defense attempted to lead the jury through a series of inferences that would have them conclude that the defendant was insane at the time he committed each of the fifteen murders charged by the State of Wisconsin. They portrayed a client who cooperated fully with the authorities and who was, in the final analysis, too disturbed to be responsible for his actions. To make this approach work, they needed narrative distance between Dahmer and the jury so he would not be interrogated about his prior inconsistent statements and meticulous planning of the killings. Though silence …

The Kennedy Decision: A Collision Course Between The U.S. Supreme Court And The People Of Louisiana, Stephan Lopez

Stephan Lopez

ABSTRACT In Kennedy v Louisiana, the U.S. Supreme Court reversed the Louisiana Supreme Court’s imposition of the death sentence on Patrick Kennedy who was found guilty of raping his eight-year-old stepdaughter. In reversing the Louisiana Supreme Court, the Court substituted their independent judgment and their evolving standards of decency for the will of the people of Louisiana; substituting the Court’s independent judgment for the will of the people of Louisiana is a continuing movement by the Court to erode state sovereignty. The paper explores what role judicial activism played in the Kennedy decision, and what role it has played in …

Technology And The Crime Society: Rethinking Legal Protection, Bert-Jaap Koops

Bert-Jaap Koops

Building on existing insights of the risk society and the surveillance society, this article sketches the contours of the emerging crime society, where every form of human behaviour is perceived in terms of potential criminal risk and controlled by means of criminal law. It articulates the pivotal role of technology in the ever increasing footprint of criminal law, as it often facilitates criminalisation, expanding policing, preventative and architectural approaches, and pervasive surveillance. Criminal law is shifting from a last resort to a primary tool of social control: criminal risk governance. This paradigm shift goes hand in hand with a shift …

Unguarded Indians: The Complete Failure Of The Post-Oliphant Guardian And The Dual-Edged Nature Of Parens Patriae, Gavin Clarkson, David Dekorte

Gavin Clarkson

Indian Country is the only location in the United States where the race of both the victim and the offender are relevant for purposes of jurisdiction and prosecution. As a result, American Indian women and children are victimized at astonishingly higher rates than the rest of society, primarily by non-Indian offenders. Pedophiles have found employment as teachers in BIA schools even after being caught molesting Indian children, and their predation of Indian children has continued with little or no fear of prosecution. American Indian females are victims of violence more than two and a half times the national average. One …