Criminal Law Commons^™

A Typology Of Consensual Criminal Procedures: An Historical And Comparative Perspective On The Theory And Practice Of Avoiding The Full Trial, Stephen C. Thaman

All Faculty Scholarship

In the words of Clifford Geertz, this chapter engages in “an exercise of intercultural translation” in order to understand the reality of plea bargaining and other forms of consensual resolution of criminal cases. It provides a history of consensual and alternative forms of criminal procedure around the world. It also provides a comprehensive discussion on alternatives to a full trial in modern penal systems and issues that arise with those alternatives.

'Fruits Of The Poisonous Tree' In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

This article gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence, and explores how these rules are interpreted when excluding the derivative “fruits” of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one’s home and confidential communications. It shows, whether a country begins with a seemingly airtight categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely triumphed over constitutional rights. As a …

Retribution And Reform, Chad Flanders

All Faculty Scholarship

What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

Using Protection Of Privacy Legislation To Erode Privacy: R. V. Chehil, Steve Coughlan

Articles, Book Chapters, & Popular Press

The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points. For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then …

Racializing Disability, Disabling Race: Policing Race And Mental Status, Camille Nelson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Liberty Lost: The Moral Case For Marijuana Law Reform, Eva Nilsen

Faculty Scholarship

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

Citizens United & Corporate & Human Crime, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

Coercing Voluntariness, Wadie E. Said

Publications

No abstract provided.

The Terrorist Informant, Wadie E. Said

Publications

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …

Reconceptualizing Restorative Justice, Kate Bloch

Faculty Scholarship

No abstract provided.

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

Balancing Liberty, Dignity And Safety: The Impact Of Domestic Violence Lethality Screening, Margaret E. Johnson

All Faculty Scholarship

This Article undertakes the first ever analysis of the consequences of the justice and legal system’s extensive use of lethality assessment tools for women subjected to abuse. An increasing number of states are now requiring their police, prosecutors, civil attorneys, advocates, service providers, and court personnel to assess women in order to obtain a score that indicates the woman’s lethality risk because of domestic violence. The mandated danger assessment screen of all women subjected to violence focuses only on the risk of homicide and thereby limits the definition of what is domestic violence. In addition, the accompanying protocol for the …

Security Council Resolution 1820: An Imperfect But Necessary Resolution To Protect Civilians From Rape In War Zones, Melissa Goldenberg Goldstoff

Cardozo Journal of Equal Rights & Social Justice

The note examines the significance and limitations of UN Security Council Resolution 1820, which recognizes rape as a war crime and a threat to international security. While the Resolution is a crucial step forward in protecting women during armed conflicts, it is argued to be imperfect due to its incomplete implementation mechanisms and potential to undermine earlier resolutions like Resolution 1325, which emphasizes women's roles in peace-building.

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

The Case For Criminalising Primary Infringements Of Copyright – Perspectives From Singapore, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Hitherto, criminal liability only attached to, inter alia, the commercial manufacture, importation, distribution and sale of infringing copies of copyright material.1 In the noncommercial context, it was also a criminal offence to distribute infringing materials that had a prejudicial impact on the copyright owner.2 The defendant therefore could not be subject to criminal prosecution for infringing acts that were not motivated by profit or that did not involve “prejudicial” distribution. Only civil liability attached to copyright infringements for what may be loosely termed “non-commercial” purposes. All this, of course, changed when the United States–Singapore Free Trade Agreement (USSFTA) was concluded …

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Constructing Systemic Safeguards Against Informant Perjury, Peter A. Joy

Scholarship@WashULaw

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is …

Berghuis V. Smith: Brief For Social Scientists, Statisticians, And Law Professors, Jeffrey Fagan, Et Al., As Amici Curiae Supporting Respondent, Samuel R. Gross

Appellate Briefs

Amici curiae are leading social scientists, statisticians, and law professors actively engaged in social scientific research focused on the criminal justice system. Included among amici are authors of authoritative books and articles on statistics and the application of statistics in social science. Amici have written and conducted studies on a broad range of topics concerning the criminal justice and jury systems. Many amici are members and leaders of associations in their fields, including the National Academy of Sciences, the National Science Foundation, and the American Society of Criminology.

Amici curiae submit this brief to evaluate the various proposed methods for …

Carr V. United States: Brief Of Law Professors As Amici Curiae In Support Of Petitioner, J. J. Prescott

Appellate Briefs

Amici curiae are law professors who specialize in constitutional law, substantive criminal law, and criminal procedure. As law professors, amici have a particular interest in ensuring that the Ex Post Facto Clause of Article I of the United States Constitution is enforced in a manner consistent with its core historic goals and principles. The judgment of the U.S. Court of Appeals for the Seventh Circuit violated these goals and principles, and it prescribed a peculiar new test for application of the Clause that significantly deviates from this Court's settled jurisprudence.

In this brief, amici explore the critical structural role of …

Summary Of Thompson V. State, 124 Nev. Adv. Op. 59, Stephanie S. Buntin

Nevada Supreme Court Summaries

Appeal from a judgment of conviction by jury of conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto.

Summary Of Ouanbengboune V. State, 125 Nev. Adv. Op. No. 56, Ammon Francom

Nevada Supreme Court Summaries

An appeal from an Eighth Judicial District Court judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Summary Of Glover V. Dist. Court, 125 Nev. Adv. Op. No. 53, Amy Kominsky

Nevada Supreme Court Summaries

This case involved a writ of prohibition to determine if Defendant’s double jeopardy rights were violated when the district court ordered a mistrial and subsequent retrial as a “manifest necessity” based on potential jury bias because defense counsel impermissibly argued facts not in evidence.

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Scholarly Works

No abstract provided.