Criminal Law Commons^™

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

A License To Kill: State Sponsored Death In The Oldest Colony In The World, Emmanuel Hiram Arnaud

Faculty Scholarship

The article discusses the death penalty in Puerto Rico as a means of state violence by the United States over Puerto Rico. In light of this, the author recounts the Puerto Rican colonial experience through a legal lens, beginning with the first organic law of Puerto Rico and the Insular Cases. Afterwards, the author examines the imposition of the death penalty on Puerto Rico and the challenges it has faced based on the due process of the fourteenth amendment. The article concludes with the stating how the death penalty is as another expression of the U.S. Congress plenary powers over …

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Lynch

Articles & Chapters

Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted …

Imagined Identities: Defining The Racial Group In The Crime Of Genocide, Carola Lingaas

Genocide Studies and Prevention: An International Journal

The provisions on genocide protect four exclusive, amongst others the racial, groups. Yet, international criminal tribunals are manifestly uncomfortable with collective groupings and interpret ‘race’ rather inconsistently. Nevertheless, there is a tendency to a subjective approach based upon the perpetrator’s perception of the targeted group. The victim’s membership is accordingly not determined objectively, but by the perception of differentness. This article incorporates the theory of imagined identities into law, thereby providing tribunals with a tool to define ‘race’. Its essence is that even if the group does not exist, it must be granted protection because of its perceived and thereby …

The Proper Reach Of Territorial Jurisdiction: A Case Study Of Divergent Attitudes, Robert Y. Jennings

Georgia Journal of International & Comparative Law

No abstract provided.

The Territorial Principle In Penal Law: An Attempted Justification, Patrick J. Fitzgerald

Georgia Journal of International & Comparative Law

No abstract provided.

To Call Or Not To Call: Compelling Witnesses To Appear Before Congress, Daniel Curbelo Zeidman

Fordham Urban Law Journal

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Community Control Over Camera Surveillance: A Response To Bennett Capers’S Crime, Surveillance, And Communities, Christopher Slobogin

Fordham Urban Law Journal

No abstract provided.

Interrogation First, Miranda Warnings Afterward: A Critical Analysis Of The Supreme Court's Approach To Delayed Miranda Warnings, Joshua I. Rodriguez

Fordham Urban Law Journal

No abstract provided.

Reducing The Rate Of Prison Recidivism In Florida By Providing State Corporate Income Tax Credits To Businesses As An Incentive For Employment Of Ex-Felons, Heidi A. Hillyer

Barry Law Review

No abstract provided.

Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services, Fraud, And The Ill-Conceived "Clean Up Government Act", J. Kelly Strader

Fordham Urban Law Journal

No abstract provided.

Introduction: Examining White Collar Crime With Trifocals, Ellen S. Podgor

Fordham Urban Law Journal

No abstract provided.

Skilling: More Blind Monks Examining The Elephant, Julie Rose O'Sullivan

Fordham Urban Law Journal

No abstract provided.

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

Model Or Anti-Model? U.S. Regulatory Takings Doctrine In Foreign Jurisdictions, Melanie Benesh

Cardozo Journal of International and Comparative Law

Canada and Australia have taken a different approach to regulatory takings than Peru, despite some similarities among the countries. Like Peru, Canada and Australia both have IIAs with the United States. Like Peru, both have also addressed regulatory takings issues in their domestic jurisprudence since signing those IIAs. And like Peru, both Canada and Australia have looked to U.S. regulatory takings doctrine while developing their own domestic jurisprudence. However, unlike Peru, Canada and Australia have both ultimately decided that the U.S. regulatory takings doctrine would not be viable in their constitutional and political systems. They view U.S. regulatory takings doctrine …

From Jones To Jones: Fifteen Years Of Incoherence In The Constitutional Law Of Sentencing Factfinding, Benjamin Priester

Journal Publications

For over 15 years, the United States Supreme Court has struggled to define the constitutional constraints upon a ubiquitous practice in contemporary American criminal justice: the exercise of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. While the Court has permitted much sentencing factfinding to continue unabated, its decisions have identified certain scenarios in which an offender's constitutional rights are violated when a fact found at sentencing creates particular impacts on the punishment. Unfortunately, from the beginning this new constitutional doctrine in criminal procedure …

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Terrorists And Antiquities: Lessons From The Destruction Of The Bamiyan Buddhas, Current Isis Aggression, And A Proposed Framework For Cultural Property Crimes, Whitney Bren

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi

Brooklyn Law Review

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …

Recidivism Recourse: Cracking Down On Florida's Sexually Violent Predators, Nicole Canha

Barry Law Review

No abstract provided.

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Cardozo Law Review

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and "possessed" simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the "third-party doctrine," which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Criminal Justice Act Of 1964; State Malpractice Suit Against Appointed Counsel; Ferri V. Ackerman, Sandra J. Branda

Akron Law Review

The United States Supreme Court in Ferri v. Ackerman reversed the Pennsylvania Supreme Court and held that an attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is not, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. In a unanimous opinion, the Court decided that the function of appointed counsel is more closely analogous to that of private retained counsel, who enjoy no immunity from malpractice prosecution than to that of judges and prosecutors who have traditionally been accorded …