Law Commons^™

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 – …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a "cultural defense." Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic.

The phrase "a cultural defense" suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A "cultural defense" in its most general sense refers to a wide range of ways in which evidence about a defendant's cultural …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

No abstract provided.

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

The essay shows that the new deterrence studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider several relevant factors that drive murder rates such as drug epidemics, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to non-existent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of the components of contemporary theoretical constructions …

A Few Reflections On The Model Penal Code Commentaries, Kent Greenawalt

Faculty Scholarship

When Deborah Denno invited me to participate in the panel of the Association of American Law Schools discussing possible revision of the Model Penal Code, I initially declined, not having taught criminal law for more than two decades and having written only sporadically in the field. Professor Denno urged that as one involved in the revision of the Commentary, I might nonetheless have something to contribute. In these reflections, as at the session, I have mainly restricted myself to the relationship between the final commentary and the Code itself.

As Gerard Lynch's essay explains, the Model Penal Code was the …