Law Commons^™

Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington

Faculty Scholarship

Criminal appeals was a hot topic in the 1970s, reflecting the politics of the Great Society and the development of the constitutional requirements of due process. There was then widespread agreement that the function of the criminal appeal was to assure that the appropriate judges were giving visible attention to all convictions to assure that they were justified. This paper will pose the question: what has become of that vision of a former generation?

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …

Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale

Faculty Scholarship

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there …

Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin

Faculty Scholarship

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …

The Deterrent Effect Of Death Penalty Eligibility: Evidence From The Adoption Of Child Murder Eligibility Factors, Michael D. Frakes, Matthew Harding

Faculty Scholarship

We draw on within-state variations in the reach of capital punishment statutes between 1977 and 2004 to identify the deterrent effects associated with capital eligibility. Focusing on the most prevalent eligibility expansion, we estimate that the adoption of a child murder factor is associated with an approximately 20% reduction in the homicide rate of youth victims. Eligibility expansions may enhance deterrence by (1) paving the way for more executions and (2) providing prosecutors with greater leverage to secure enhanced non-capital sentences. While executions themselves are rare, this latter channel is likely to be triggered fairly regularly, providing a reasonable basis …

The Reichstag Fire Trial, 1933-2008 : The Production Of Law And History, Michael E. Tigar, John Mage

Faculty Scholarship

No abstract provided.

You’Ve Come A Long Way, Baby: Two Waves Of Juvenile Justice Reforms As Seen From Jena, Louisiana, Sara Sun Beale

Faculty Scholarship

This article describes the origins and impact of two modern reforms that dramatically rewrote the law governing the prosecution of juvenile offenders: the Warren Court’s due process decisions and the juvenile justice legislation of the 1990s. Beginning with the prosecution of Mychal Bell, who was one of the Jena 6, the article provides a broader historical and analytical framework to assess the procedural protections available to juveniles charged with serious offenses, particularly the adequacy of the remedies to challenge prosecutorial discretion and disparate treatment by the prosecution.

The article first describes the key role race played in the Warren Court’s …

A Response To The Critics Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather …