Criminal Law Commons^™

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

You Be The Judge: The Wholesale Implementation Of Bail Schedules By The Judiciary As An Abdication Of Adjudicatory Responsibility Creating A Disparate Impact For African-Americans And Hispanics Accused Of A Criminal Offense, Taurus Myhand

Scholarly Works

The presumption of innocence is not well illustrated in the age-old and widespread use of monetary bail systems by most jurisdictions throughout the United States. In fact, whether a person is detained in jails prior to the final disposition of the case, is not likely to be dependent on the strength of the government’s case toward proving the accusee’s guilt. Rather, pre-trial detention is much more dependent on whether the accusee has the means to pay an amount of money determined by a court.

As the calls for bail reform resurges, many legal professionals are looking for alternatives to monetary …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

Faculty Scholarship

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Joshua Gupta-Kagan

Faculty Scholarship

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults …

The Systems Fallacy: A Genealogy And Critique Of Public Policy And Cost-Benefit Analysis, Bernard Harcourt

Faculty Scholarship

This essay identifies the systems fallacy: the mistaken belief that systems-analytic decision-making techniques, such as cost-benefit or public policy analysis, are neutral and objective, when in fact they normatively shape political outcomes. The systems fallacy is the mistaken belief that there could be a nonnormative or scientific way to analyze and implement public policy that would not affect political values. That pretense is mistaken because the very act of conceptualizing and defining a metaphorical system, and the accompanying choice-of-scope decisions, constitute inherently normative decisions that are value laden and political in nature. The ambition of decision theorists to render policy …

Legal Dilemmas In Releasing Indonesia’S Political Prisoners, Daniel Pascoe

Indonesia Law Review

In May 2015, in an effort to foster peace in the restive Papua and West Papua Provinces, Indonesian President Joko ‘Jokowi’ Widodo granted clemency to five political prisoners, releasing them from sentences ranging from 20 years to life. The president also stated that there would be ‘a follow-up granting clemency or amnesty to other [political prisoners] in other regions’ (Jakarta Post, 10 May 2015). However, with up to 50 political prisoners still incarcerated in prisons around Indonesia (mostly Papuan and Moluccan separatists), Jokowi’s selective release policy faces several legal and political obstacles. This article outlines the various options open to …

Brown V. Eighth Judicial Dist. Ct, 133 Nev. Adv. Op. 113 (December 28, 2017, Ebeth Rocio Palafox

Nevada Supreme Court Summaries

The Court clarified the definition of an indigent person and the demonstration of need sufficient required for an indigent person’s request for defense services. The Court additionally held that Widdis v. Second Judicial Dist. Court does not require an indigent defendant to request a sum certain before the consideration or granting of a motion for defense services at public expense.

Doe V. State Ex Rel. Legislature Of The 77th Session, 133 Nev. Adv. Op. 93 (Dec. 7, 2017), Shady Sirsy

Nevada Supreme Court Summaries

The Nevada Supreme Court held that (1) a medical marijuana registry in Nevada does not encroach upon a medical marijuana user’s fundamental right; (2) the registry is rationally related to legitimate state interests beneficial to the public; and (3) the registry does not implicate a registrant’s right against self-incrimination.

Revisiting The Voluntariness Of Confessions After State V. Sawyer, Michael Theodore Bigos

Maine Law Review

Every individual in our society needs confidence in our criminal justice system to know that one cannot be convicted of a crime unless a fact finder is convinced of every necessary element with the highest assurances of the truth. The process of establishing facts in a criminal trial is highly dependent upon how decision-making power is allocated between the judge and the jury and upon the fairness of that allocation. This Note discusses the areas of confession law and burdens of proof in the context of how federal criminal constitutional doctrines that affect the fact-finding process offer less than clear …

Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor

Maine Law Review

In United States v. Corey, Alvin Scott Corey was found guilty of possessing a firearm as a felon. Although Corey's possession of a Smith and Wesson shotgun violated Maine law, Corey was prosecuted in the United States District Court under the federal statute 18 U.S.C. § 922(g)(1) and its penalty statute, § 924(e). On appeal, Corey argued that one of the requirements for his conviction, proof of the statute's jurisdictional element, had not been satisfied because that proof rested on expert testimony based, in part, on hearsay. The First Circuit Court of Appeals, in a split decision, affirmed Corey's conviction, …

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …

Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin

Utah Law Faculty Scholarship

Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.

Report On The Texas Legislature, 85th Session: An Urban Perspective-Criminal Justice Edition, Sarah R. Guidry, Zahra Buck Whitfield, Amber K. Walker, Marshaun Williams, Grady Paris

The Bridge: Interdisciplinary Perspectives on Legal & Social Policy

In Texas, the legislature meets every 2 years and at the end of a regular legislative session, hundreds of passed bills will have been sent to the governor for approval. The large number of bills and the wide range of topics they cover can make it difficult to gain an understanding of all the new laws that were passed. At the close of each legislative session the Earl Carl Institute publishes, for the benefit of its constituents, highlights from the session in a bi-annual legislative report. In this year’s publication entitled Report on the Texas Legislature, 85th Session: An Urban …

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power …

Crime And Punishment: A Catholic Perspective, Joseph L. Falvey, Jr.

The Catholic Lawyer

No abstract provided.

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted it under Minnesota’s excited …

Smashing The Tragic Illusion Of Justice: The Reprehensibility Of The Death Penalty In Virginia, Meagan E. Costello

The Catholic Lawyer

No abstract provided.

Capital Punishment In The Age Of Terrorism, Norman L. Greene, Norman Redlich, David Bruck, Paul Saunders, Richard Weisberg, Kenneth Roth

The Catholic Lawyer

No abstract provided.

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the …

A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial, Jennifer Horan

University of Richmond Law Review

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

This article aims to give a succinct review of notable criminal

law and procedure cases decided by the Supreme Court of Virginia

and the Court of Appeals of Virginia during the past year. Instead

of covering every ruling or rationale in these cases, the article

focuses on the "take-away" of the holdings with the most

precedential value. The article also summarizes noteworthy

changes to criminal law and procedure enacted by the 2017 Virginia

General Assembly.

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Utah Law Review

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

Designed To Fail: The President’S Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler

William & Mary Law Review

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting common sense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory all …

Thinking Inside The Box: Placing Form Over Function In The Application Of The Statutory Sentencing Procedure In State Of Maine V. Eugene Downs, Matthew E. Lane

Maine Law Review

In State v. Hewey, the Maine Supreme Judicial Court found that the sentencing court erred in imposing a sentence that exceeded the maximum applicable period of incarceration for a Class A crime and accordingly vacated the sentence. Perhaps more importantly, the Law Court used the case as an “opportunity for clarification of [its] review of an appeal from a sentence imposed by the trial court.” A unanimous court sought to clear up some inconsistencies in previous decisions regarding “the terminology used to define each of the three steps” of the sentencing process by better describing the procedure “by which the …

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another …

Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello

Maine Law Review

In Strickland v. Washington, the United States Supreme Court issued a seminal holding that single-handedly rendered it nearly impossible for a capital defendant to demonstrate that he was the victim of ineffective assistance of counsel at the underlying trial or at sentencing. Indeed, due in substantial part to the fact that "Strickland was not intended to impose rigorous standards on criminal defense attorneys," the Court found ineffective assistance of counsel in only one case over the next sixteen years. Critically, however, during this time, both state and federal courts bore witness to some of the most horrific examples of death …

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial court ultimately denied. …

Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos

Maine Law Review

In State v. Connor, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a trial judge’s denial of a motion to suppress evidence. Although the evidence presented in the suppression hearing seemed adequate to support the denial of the motion, the trial judge failed to clearly state his conclusions of law when denying the motion. However, the Law Court mistook the ambiguous conclusions of law as ambiguous findings of fact. Because the findings of fact were ambiguous in the court’s view, the majority and dissenting opinions spent the bulk of their energies discussing how the court should review …

Too Low A Price: Waiver And The Right To Counsel, Zachary L. Heiden

Maine Law Review

Easy waiver of the right to counsel is at the heart of the problem with inadequate funding for criminal defense counsel for the indigent: without freely granted waiver of the right to counsel, the crisis in funding for indigent defense would, in the short term, be greatly magnified. But, the ready acceptance of the waivability of the right to counsel devalues and diminishes the significance of the assistance of counsel in criminal matters.