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Articles 1 - 30 of 241
Full-Text Articles in Law
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Jeffrey J. Rachlinski
Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …
Targeting And The Concept Of Intent, Jens David Ohlin
Targeting And The Concept Of Intent, Jens David Ohlin
Jens David Ohlin
International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …
Joint Intentions To Commit International Crimes, Jens David Ohlin
Joint Intentions To Commit International Crimes, Jens David Ohlin
Jens David Ohlin
The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls …
Searching For The Hinterman: In Praise Of Subjective Theories Of Imputation, Jens David Ohlin
Searching For The Hinterman: In Praise Of Subjective Theories Of Imputation, Jens David Ohlin
Jens David Ohlin
How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required though their …
Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin
Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin
Jens David Ohlin
Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that …
Joint Criminal Confusion, Jens David Ohlin
Joint Criminal Confusion, Jens David Ohlin
Jens David Ohlin
Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …
Assessing The Control-Theory, Jens David Ohlin, Elies Van Sliedregt, Thomas Weigend
Assessing The Control-Theory, Jens David Ohlin, Elies Van Sliedregt, Thomas Weigend
Jens David Ohlin
As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the …
The Torture Lawyers, Jens David Ohlin
The Torture Lawyers, Jens David Ohlin
Jens David Ohlin
One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …
Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin
Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin
Jens David Ohlin
According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …
Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin
Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin
Jens David Ohlin
International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …
International Law And Prosecutorial Discretion, Jens David Ohlin
International Law And Prosecutorial Discretion, Jens David Ohlin
Jens David Ohlin
No abstract provided.
The Bounds Of Necessity, Jens David Ohlin
The Bounds Of Necessity, Jens David Ohlin
Jens David Ohlin
The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …
The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin
The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin
Jens David Ohlin
No abstract provided.
The One Or The Many, Jens David Ohlin
The One Or The Many, Jens David Ohlin
Jens David Ohlin
The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …
Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin
Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin
Jens David Ohlin
Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that …
Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin
Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin
Jens David Ohlin
International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence …
Three Conceptual Problems With The Doctrine Of Joint Criminal Enterprise, Jens David Ohlin
Three Conceptual Problems With The Doctrine Of Joint Criminal Enterprise, Jens David Ohlin
Jens David Ohlin
This article dissects the Tadic court’s argument for finding the doctrine of joint criminal enterprise in the ICTY Statute. The key arguments are identified and each are found to be either problematic or insufficient to deduce the doctrine from the statute: the object and purpose of the statute to punish major war criminals, the inherently collective nature of war crimes and genocide and the conviction of war criminals for joint enterprises in World War II cases. The author criticizes this overreliance on international case law and the insufficient attention to the language of criminal statutes when interpreting conspiracy doctrines. The …
Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson
Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson
Sheri Lynn Johnson
Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …
Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson
Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
An Empirical Look At Atkins V. Virginia And Its Application In Capital Cases, John H. Blume, Sheri Lynn Johnson, Christopher Seeds
An Empirical Look At Atkins V. Virginia And Its Application In Capital Cases, John H. Blume, Sheri Lynn Johnson, Christopher Seeds
Sheri Lynn Johnson
In Atkins vs. Virginia, the Supreme Court declared that evolving standards of decency and the Eighth Amendment prohibit the death penalty for individuals with intellectual disability (formerly, "mental retardation"). Both supporters and opponents of the categorical exemption, however, have criticized the Atkins opinion. The Atkins dissent, for example, urged that the decision would open the gates of litigation to a flood of frivolous claims. Another prominent criticism, heard from those more supportive of the Court's ruling, has been that the language the Court used communicating that states must "generally conform" to the clinical definitions of mental retardation is ambiguous enough …
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Sheri Lynn Johnson
In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …
Racial Imagery In Criminal Cases, Sheri Lynn Johnson
Racial Imagery In Criminal Cases, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Confessions, Criminals, And Community, Sheri Lynn Johnson
Confessions, Criminals, And Community, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
Sheri Lynn Johnson
On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …
Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson
Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson
Sheri Lynn Johnson
Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
Sheri Lynn Johnson
In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more …
Race And Recalcitrance: The Miller-El Remands, Sheri Johnson
Race And Recalcitrance: The Miller-El Remands, Sheri Johnson
Sheri Lynn Johnson
In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …
Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson
Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson
Sheri Lynn Johnson
Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …
Black Innocence And The White Jury, Sheri Johnson
Black Innocence And The White Jury, Sheri Johnson
Sheri Lynn Johnson
Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that …
Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson
Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.