Criminal Law Commons^™

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Testimonial Injustice In International Criminal Law, Shannon Fyfe

Scholarly Articles

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that …

Collateral Consequences For Justice-Involved Youth: A Model Approach To Reducing The Number Of Collateral Consequences, Jennica Janssen

Marquette Benefits and Social Welfare Law Review

Collateral consequences—stigma and disadvantages individuals face after becoming entangled in the legal system—for justice­involved youth differ by jurisdiction and number in the thousands. Although the American Bar Association (ABA) and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) advocated for the reduction of juvenile collateral consequences over five years ago, after an initial surge in activism, the movement lost momentum. The Federal Advisory Committee on Juvenile Justice and several non-profit, public interest law firms, continue to advocate for the clarification of juvenile collateral consequences and the elimination of specific sanctions. This Note recognizes the importance of gathering juvenile collateral …

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia Jones

Scholarly Articles in Law Reviews & Journals

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

How Can I Reconcile With You When Your Foot Is On My Neck: The Role Of Justice In The Pursuit Of Truth And Reconciliation, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

In Ferguson, a wound bleeds. For 108 days, we have been in a state of prolonged and protracted grief.... We have had no choice but to cling together in hope, faith, love and indomitable determination to capture that ever-escaping reality of justice ... we find ourselves reinjured, continually heartbroken, and robbed of even the remote possibility of judicial resolution. For 108 days, we have continuously been admonished that we should "let the system work," and wait to see what the results are. The results are in. And we still don'thavejustice. . . . We, altogether, bound up in a system …

Access To Justice: Accelerating The Abandonment Of Fgm/C, Gretchen Kail

Cardozo Journal of Conflict Resolution

This Note discusses the role comprehensive legislation traditionally plays through a top-down approach and proposes the use of bottom-up approaches to better leverage national laws and new legal norms to support collective societal action. The discussion views legislation and FGM/C through a social norm lens: "a comprehensive, multi-sectorial, culturally sensitive approach that incorporates a social perspective to impact collective change."

Section II of this Note defines FGMIC as a health issue, a human rights violation, and a social norm. Section III discusses relevant international and regional human rights frameworks; state obligations; divergent views on the effects and usefulness of national …

The Devil's Advocate Also Wears Prada: The Impracticality Of Adr In Counterfeiting Disputes And The Prospect Of Arbitration, Anan Kahari

Cardozo Journal of Conflict Resolution

The purpose of this Note is to posit that arbitration, tailored for counterfeiting disputes, could potentially serve as a reliable method for fashion companies to combat counterfeiting. Part II discusses the background of IP rights and the relationship between counterfeiting and fashion. Part III highlights the traditional advantages of ADR and how some of those advantages may become disadvantages when applied to counterfeiting disputes. Lastly, Part IV argues that arbitration can be designed to be applicable to counterfeiting disputes described in this Note.

The Unexpected Scope Of The Cfaa: And How Netflix Users Could Be Committing A Federal Crime, Michael Levy

Cardozo International & Comparative Law Review

The Ninth Circuit's broad interpretation of the Computer Fraud and Abuse Act (CFAA) in United States v. Nosal II criminalizes everyday activities like password sharing, undermining the Act's original purpose to prevent hacking. The court ruled that accessing a computer after authorization has been revoked constitutes a violation, even if the access is for innocuous purposes. This interpretation disproportionately benefits large service providers, allowing them to suppress legitimate user claims and exposing millions of Americans to potential prosecution for common online practices.

The Violence Against Women Act, Implicit Bias, And Judicial Training, Lorena Espino-Piepp

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Violence Against Women Act (VAWA) must be amended to include implicit bias training for Family Court judges and staff to address the systemic barriers faced by undocumented Latina immigrant women in accessing justice. These women often face compounded discrimination based on race, ethnicity, and immigration status, which undermines their ability to obtain immigration relief through VAWA protections. The author contends that without such training, the judicial system perpetuates inequities, as judges and court personnel rely on stereotypes that disproportionately harm women of color.

"Dangerous Instruments": A Case Study In Overcriminalization, Chad Flanders, Desiree Austin-Holliday

All Faculty Scholarship

Many states - including Missouri - have provisions that provide greater punishment for some felonies that are committed with, or by the use of, a .. deadly weapon" or "dangerous instrument."1 The definition o f "deadly weapon" tends to be pretty straightforward, usually a list that includes several specific items that just are deadly weapons, such as guns and knives.2 "Dangerous instrument" is deliberately left as a broader, more capacious term - defined not in terms o f a list o f instruments but in terms of those things that could be easily or "readily" used to cause serious physical …

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

All Faculty Scholarship

Let me start by just stating my experience of reading The Rule of Law in the Real World¹ because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn …

How Much Certainty Do We Need To Punish? A Reply To Kolber, Chad Flanders

All Faculty Scholarship

Scene: Outside Brooklyn Law School, mid-morning. CHADF, a law professor, reads something on his phone while waiting for an Uber. He is holding a cup of coffee in his other hand. KOLBERT, also a law professor, is walking quickly, deep into editing his latest law review article, mostly oblivious to the outside world. KOLBERT collides with CHADF, causing him to spill coffee all over his shirt.

Dangerous Defendants, Sandra G. Mayson

Scholarly Works

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Publications

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

The Death Penalty As Incapacitation, Marah Stith Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Amicus Curiae Observations On The “Prosecution’S Request For A Ruling On Jurisdiction Under Article 19(3) Of The Statute”, Fannie Lafontaine, Robert Currie, Amanda Ghahremani

Reports & Public Policy Documents

The Amici Curiae (‘the Amici’) have been granted leave by Pre-Trial Chamber I (‘the Chamber’) to submit observations in the present proceeding, which derives from the Prosecutor’s request under art. 19(3) for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The Amici respectfully offer the Chamber observations on the novel legal issues raised by the Prosecutor’s Request: (II) the scope of art. 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it; (III) the scope …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

Why Not Believe Women In Sexual Assault Cases?: An Engagement With Professors Tuerkheimer, Colb, And Many Others, Dan Subotnik

Touro Law Review

No abstract provided.

The Necessity Of The Good Person Prosecutor, Jessica A. Roth

Articles

In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor.

Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson

St. Mary's Law Journal

Abstract forthcoming

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

Sentencing Reform: Fixing Root Problems, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, …