Criminal Law Commons^™

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh Goodmark

ExpressO

The article explores the prevailing theories justifying criminal punishment in the United States through the lens of the case of Dixie Shanahan, an Iowa woman who was sentenced to fifty years imprisonment for killing her abusive spouse after nineteen years of battering. The article begins with a detailed examination of the life of Dixie Shanahan and places her within the context of the literature on battered women who kill. The piece then looks at both retributivist and utilitarian justifications for punishment and concludes that only a retributivist rationale justifies the punishment of Ms. Shanahan and other battered women who kill, …

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

The Futile Debate Over The Morality Of The Death Penalty, Daniel R. Williams

ExpressO

No abstract provided.

Criminal Forfeiture Procedure: 2006, Stefan D. Cassella

ExpressO

This article is intended to bring the reader up to date on developments in the federal case law relating to criminal forfeiture procedure. It does not cover every topic related to criminal forfeiture, nor all of the exceptions and nuances that apply to the topics that are discussed; rather, it covers only those matters on which there was a significant development in the case law in the past year. Thus a basic familiarity with federal criminal forfeiture procedure is assumed.

The article begins with the law on the scope of criminal forfeiture and the seizure and restraint of property prior …

Halbert V. Michigan: The Application Of The Douglas-Ross Dichotomy In Constitutionalizing Indigency In States’ Appellate Court Processes, Omari O. Jackson

ExpressO

This note centers on a discussion of the recent U.S. Supreme Court decision in the Halbert v. Michigan case. This case addressed the issue of whether an indigent defendant is entitled to assistance of counsel by the state to file a leave for appeal. The Court, in a 6-3 decision, held that an indigent defendant is entitled to assistance of counsel when an appeal is available by leave of the court. Prior decisions by the U.S. Supreme Court have addressed the issue of assistance of counsel during the trial and appellate stage of litigation. This note will present a historical …

Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, Steven Semeraro

ExpressO

This article reassesses the use of federal habeas corpus to enforce the Fourth Amendment’s protection against unreasonable searches and seizures. In 1976, the U.S. Supreme Court prohibited virtually all substantive review of search-and-seizure claims in federal habeas proceedings. A wave of critical commentary followed, arguing that there was no legitimate reason to distinguish the Fourth Amendment from other constitutional rights. In recent years, however, this anomaly in habeas corpus practice has gone almost entirely unexamined despite dramatic changes in the law governing both the Fourth Amendment and habeas corpus itself.

This article does two things. First, it reviews the history …

Poor Whites, Benevolent Masters, And The Ideologies Of Slavery: A Slave Accused Of Rape In The Antebellum South, Jason A. Gillmer

ExpressO

This Article analyzes in detail a case involving a slave accused of raping a white woman in the 1850s to offer a fresh perspective on our basic assumptions about sex and race in the slave South. Joining a new group of “cultural-legal historians,” the author looks beyond the legal language of Southern legislatures and high courts, and focuses instead on the trial record of one case: State v. Pleasant. In doing so, the author uncovers the stories of ordinary men and women – the slave, his master, his accuser, his attorney, the jurors, and others – to see how the …

Christ, Christians & Capital Punishment, Mark Osler

ExpressO

Last year, I came to a startling conclusion: That the debate over the death penalty in the United States is largely among Christians, but has ignored the capital sentencing which is at the center of that faith. The result of this epiphany is Christ, Christians & Capital Punishment.

In this article, I argue that the story of Christ parallels modern capital practice in many respects: Christ was turned in by a paid informant (Judas), arrested in a strategic manner, given an arraignment and stood mute, was tried, convicted and sentenced, appealed to two separate sovereigns, and finally was denied a …

Refugee Security And The Organizational Logic Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political …

Rethinking Overcriminalization, Darryl K. Brown

ExpressO

If there is one thing American criminal law scholars agree on, it is that our justice system suffers from overcriminalization. Our codes criminalize too much conduct; outdated offenses remain too long on the books, and legislatures cannot resist adding new crimes and harsher punishments. This is so because criminal law is a distinctive issue for legislative debate and for democratic politics generally. Few lobby against crime creation; legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but doesn’t contract. On this account, criminal …

The Legality Of Governmental Responses To Terrorism And The Dichotomous Characterization Of Terrorists As Criminals Or Enemy Combatants, Gregory E. Maggs

ExpressO

This article argues that the United States and other nations ought to create specialized laws to regulate governmental responses to terrorism, rather than debating whether the current laws of war or the current rules of law enforcement should apply. These specialized laws would see terrorism as a problem that sometimes lies between traditional crime and traditional warfare, and would establish rules designed to address governmental responses to it.

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Misplaced Angst---Another Look At Consent-Search Jurisprudence, Daniel R. Williams

ExpressO

Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what …

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

Necessity, Torture And Existential Politics, Christopher Kutz

ExpressO

This paper takes up the political theory sketched by the Office of Legal Counsel memorandum of August 1, 2002. That memorandum proposed a theory of executive emergency powers, including the power to use torturous interrogation techniques otherwise barred by domestic and international law. According to the memorandum, both the power to deploy torture and other forms of coercive interrogation, and the general freedom of the executive to direct policy in times of war, are grounded in a justification of necessity. The central aim of my paper is to explore the force and limits of necessity claims in moral and political …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s wicked …

Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert

ExpressO

The death penalty has long been a staple of governmental punishment. It has been incorporated in the Hammurabi Code of ancient Babylon on down to the current laws of many American States. In early America, capital punishment, exercised at the local level, was ubiquitous and widely accepted. Pennsylvania lists itself among the states currently employing the death penalty. The death penalty in Pennsylvania began in the late 1600’s when the first colonists carried out public hangings as a punishment for various crimes. The public nature of the punishment, initially, was intended to deter community members from committing the same crimes. …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well as …

The Power Of An Indictment – The Legal Implications Of The Demise Of Arthur Andersen, James Kelly

ExpressO

This article examines the impact an indictment can have against a limited liability partnership of professionals, in particular the Justice Department’s prosecution of accounting firm Arthur Andersen. Following a brief chronological description of the factual background of the case, the article then examines the weight an indictment is supposed to have, followed by the standards for issuing an indictment against an entire partnership rather than just the individuals who allegedly performed wrongful acts. The notion of prosecutorial discretion is heavily emphasized, and the factors that contributed to the prosecution of Andersen are discussed. Finally, the implications of this situation are …

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

The Misery Of Mitra: Considering Criminal Punishment For Computer Crimes, James T. Tsai

ExpressO

This paper analyzes the policies and philosophy of punishment for computer crimes under the post-Sept. 11th regime. I argue that the judicial discourse represented in Mitra represents a willingness to use the Computer Fraud and Abuse Act to go after defendants that cause trouble with critical infrastructures, the so-called “domestic terrorist.” This is manifested in the levels of punishments for such offenses and calls into question whether the traditional theories of punishment are applicable. I argue that as a policy, it makes good sense but the hazy definitions of terrorism may present problems for its success, and instead an approach …

Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah

ExpressO

This is a discussion of the legal and economic ramifications of password theft.

On The Potential Of Neuroscience: A Comment On Greene And Cohen’S "For The Law, Neuroscience Changes Nothing And Everything", Theodore Y. Blumoff

ExpressO

In a recent article, Joshua Greene and Jonathan Cohen add their voices to an emerging discussion about the place of neuroscience in law and social policy. They argue convincingly that new data from the developing field of neuroscience will dramatically and positively change our legal system. I agree with their conclusions, but I believe that their commitment to a kind of neuroscientific determinism or essentialism is wrong, unnecessary, and even dangerous; it would move law in a direction that eliminates ongoing, normative decision-making. In the essay I have attached, I first set the stage by discussing the commitment of our …