Law Commons^™

Overcriminalization: Is There A Problem To Solve?, Roger Fairfax

Presentations

No abstract provided.

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

All Faculty Scholarship

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Mental Disorder And Criminal Law, Stephen J. Morse

All Faculty Scholarship

Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal …

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Convictions, Yolanda Vazquez

Faculty Articles and Other Publications

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding …

Hot Crimes: A Study In Excess, Steven P. Grossman

All Faculty Scholarship

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie

Articles, Book Chapters, & Popular Press

Originally prepared as a CLE backgrounder for criminal lawyers, this article provides a brief and occasionally critical account of developments in the law of evidence over the last three or so decades. Particular attention is paid to the Supreme Court of Canada’s introduction and development of the “principled approach.” It is argued that this framework has been most successful where it has coalesced into a more traditional-looking “rules-based” stance, albeit one based in principle, and less so where looser tests of principle have been given freer rein.

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

All Faculty Scholarship

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

"Sticky Metaphors" And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Joseph L. Hoffmann, Elise J. Percy, Steven J. Sherman

Articles by Maurer Faculty

No abstract provided.

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …