Law Commons^™

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

Understanding Mass Incarceration In The Us Is The First Step To Reducing A Swollen Prison Population, Jeffrey Bellin

Popular Media

No abstract provided.

The Imagined Juror: How Hypothetical Juries Influence Federal Prosecutors (Book Review), Jeffrey Bellin

Popular Media

No abstract provided.

Prescribing Opioids Without Fear Of Prosecution, Adam M. Gershowitz

Popular Media

No abstract provided.

Seditious Conspiracy Charge Against Oath Keepers Founder And Others In Jan. 6 Riot Faces First Amendment Hurdle, Timothy Zick

Popular Media

No abstract provided.

The Opioid Doctors: Is Losing Your License A Sufficient Penalty For Dealing Drugs?, Adam M. Gershowitz

Faculty Publications

Imagine that a medical board revokes a doctor's license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a pain management specialist. Yet, during a one-year period he wrote more than 4,000 prescriptions for opioids--roughly eighteen scripts per day. Patients came from multiple states and from hundreds of miles away to get oxycodone prescriptions. And the doctor prescribed large quantities of opioids--up to 240 pills per month--to patients with no record of previously needing narcotic painkillers. Both federal and …

Trauma And Memory In The Prosecution Of Sexual Assault, Cynthia V. Ward

Faculty Publications

Part I of this article traces the history of the recovered memory movement in the criminal prosecution of sexual assault, discussing some prominent cases and their consequences for wrongly convicted defendants. Part II asks why the criminal law was so vulnerable to claims of sexual assault, and other violent crimes, that were often wildly improbable on their face. The article concludes that the structure of recovered memory theory had the effect of disabling checks in the criminal process which are designed to prevent unjust convictions. Part III applies that conclusion to the theory of Trauma-informed Investigation (TII) and the "Neurobiology …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Faculty Publications

No abstract provided.

Section 3: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.

International Criminal Court Comes Of Age, Nancy Amoury Combs

Popular Media

No abstract provided.

Two Models For Amending The 'Fleeing Felon' Rule, Cynthia V. Ward

Faculty Publications

The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did not present an imminent threat of violence to the officers or others. By contrast, the right of private citizens to use deadly force against another person is generally restricted to situations involving self-defense—where an innocent person reasonably believes she is facing an imminent threat of death …

The Right To Counsel In Criminal Cases: Still A National Crisis?, Mary Sue Backus, Paul Marcus

Faculty Publications

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Prosecutorial Dismissals As Teachable Moments (And Databases) For The Police, Adam M. Gershowitz

Faculty Publications

The criminal justice process typically begins when the police make a warrantless arrest. Although police usually do a good job of bringing in the “right” cases, they do make mistakes. Officers sometimes arrest suspects even though there is no evidence to prove an essential element of the crime. Police also conduct unlawful searches and interrogations. And officers make arrests in marginal cases—schoolyard fights are a good example—in which prosecutors do not think a criminal conviction is appropriate. Accordingly, prosecutors regularly dismiss cases after police have made warrantless arrests and suspects have sat in jail for days, or even weeks. In …

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Faculty Publications

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for …

Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Faculty Publications

No abstract provided.

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Section 5: Criminal Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

In Loco Aequitatis: The Dangers Of 'Safe Harbor' Laws For Youth In The Sex Trades, Brendan M. Conner

Faculty Publications

This Article provides the first critical analysis of safe harbor laws, which rely on custodial arrests to prosecute or divert youth arrested for or charged with prostitution related offenses under criminal or juvenile codes to court supervision under state child welfare, foster care, or dependency statutes. This subject is a matter of intense debate nationwide, and on May 29, 2015 the President signed legislation that would give preferential consideration for federal grants to states that have enacted a law that "discourages the charging or prosecution" of a trafficked minor and encourages court-ordered treatment and institutionalization. Nearly universally lauded, the sound …

Book Review Of Lizzie Borden On Trial: Murder, Ethnicity, And Gender, Linda K. Tesar

Library Staff Publications

No abstract provided.

The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus

Faculty Publications

No abstract provided.

Combatendo A Corrupção Nos Estados Unidos, Paul Marcus

Faculty Publications

The article discusses the problematic of the fight against the corruption by the criminal justice system of the United States, mainly the white-collar crimes. It is emphasized, first, that in most of the cases does not result in trial, but in plea bargains, and, second, in many cases the encouragement from an undercover agent has served as an effective defense instrument. Finally, it is discussed the problematic of the use of information obtained from the technological devices and its probable violation to the right privacy.

This article is in Portuguese.

Justice For The 1 Percent: A Corrupt Governor Stays Free, Those Who Should Have Never Been Jailed Die There, Jeffrey Bellin

Popular Media

No abstract provided.

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.