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Full-Text Articles in Law
Police Killings As Felony Murder, Guyora Binder, Ekow Yankah
Police Killings As Felony Murder, Guyora Binder, Ekow Yankah
Journal Articles
The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …
The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa
The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa
Journal Articles
In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …
Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins
Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins
Journal Articles
As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …
"Innocence" And The Guilty Mind, Stephen F. Smith
"Innocence" And The Guilty Mind, Stephen F. Smith
Journal Articles
For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment …
Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman
Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman
Journal Articles
Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. …
A Humble Justice, Marah S. Mcleod
A Humble Justice, Marah S. Mcleod
Journal Articles
Media and scholarly critics often claim that Justice Thomas's criminal law opinions reflect intentional cruelty or callousness, and dismiss his opinions without engaging seriously with their substance.
This Essay contends that judicial humility is a far more plausible explanation for Justice Thomas's criminal case decisions. If observers recognize that his approach to the law is guided by humility, rather than his own cruel or callous views, they will be more likely to consider the substance of his opinions and will benefit from wrestling with his challenging jurisprudential and historical perspective - even if they do not agree with the conclusions …
What Is Criminal Law About?, Guyora Binder, Robert Weisberg
What Is Criminal Law About?, Guyora Binder, Robert Weisberg
Journal Articles
In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally, …
Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead
Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead
Journal Articles
Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …
Representing Nazism: Advocacy And Identity At The Trial Of Klaus Barbie, Guyora Binder
Representing Nazism: Advocacy And Identity At The Trial Of Klaus Barbie, Guyora Binder
Journal Articles
Noting the enormous media interest in the war crimes trial of Klaus Barbie, and the surprising emphasis of this coverage on its cultural significance, this essay provides a literary reading of the trial as a contest over identity. More specifically, it treats the trial and its coverage as a struggle among competing groups - including the French state, various strands of the French left, the French right, resistance veterans, holocaust survivors, Zionists, Arabs, anti-colonialists - for the power to represent Nazism. All of these groups sought to define Nazism so as to claim a privileged identity as essential victims or …