Law Commons^™

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

Jurisdiction To Adjudicate And Jurisdiction To Prescribe In International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system.

This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II …

Towards A Legal History Of American Criminal Theory: Culture And Doctrine From Blackstone To The Model Penal Code, Gerald F. Leonard

Faculty Scholarship

Many writers in recent decades have objected to the utilitarian aspects of substantive criminal law that cannot be squared with modern, retributivist versions of criminal justice. One particular target of the retributivists has been the use of strict liability, especially as it is applied in statutory rape cases. This article is an effort, not to take sides between utilitarians and retributivists, but to historicize the ideas and assumptions on all sides of the debates in criminal law, including the debate about strict liability in statutory rape.

Discovering very little historical work on the subject, I offer the first general intellectual …

Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth Simons

Faculty Scholarship

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the …

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science, is …

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …