Criminal Law Commons^™

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee Jr., Paul E. Coffey, L. Gordon Crovitz

Faculty Scholarship

Opening Statement of Mr. Crovitz: Coming to the Notre Dame Law School to debate Robert Blakey on the Racketeer Influenced and Corrupt Organizations law makes me feel like Daniel approaching the lion's den. I'm tempted to offer my own prayer, "Yea, though I walk through the valley of the shadow of death, I will fear no RICO."

More Than "Slightly Retro:" The Rehnquist Court's Rout Of Habeas Corpus Jurisdiction In Teague V. Lane, James S. Liebman

Faculty Scholarship

Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as "slightly retro." I am not sure of the allusion, but what I can discern leads me to think that the Supreme Court's nonretroactivity decisions beginning with Teague v. Lane are – puns aside – more than just "slightly retro."

The Court's innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, …

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …

Mistake In The Model Penal Code: A False False Problem, George P. Fletcher

Faculty Scholarship

No solution seems more gratifying to the modern theorist than to claim that an apparently serious problem is not really a problem at all. By branding nonfalsifiable propositions as nonsense, the Vienna circle of logical positivists discovered that the metaphysical concerns of others were really false problems. By ridding philosophy of false problems, Wittgenstein thought that he could let the fly escape from the bottle; he could release the philosophical spirit from its confounding constraints. Brainerd Currie brought this method to the law with his justly famous theory of false conflicts in the conflicts of laws. There was no need …

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Termination Of Parental Rights Law, Philip Genty

Faculty Scholarship

In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care. …

Hush: The Criminal Status Of Confidential Information After Mcnally And Carpenter And The Enduring Problem Of Overcriminalization, John C. Coffee Jr.

Faculty Scholarship

Each of the last three decades has witnessed an intense public reaction to a distinctive type of "white collar" crime. In the early 1960's, public attention was riveted by the Electrical Equipment conspiracy and the image of senior corporate executives of major firms meeting clandestinely to fix prices. In the mid-1970's, the focus shifted to corporate bribery, as the media ran daily stories regarding questionable payments abroad and illegal political contributions at home. The representative white collar crime of the 1980's is undoubtedly "insider trading." The archetype of this new kind of criminal in the public's mind is Ivan Boesky …

A Vice Of Its Virtues: The Perils Of Precision In Criminal Codification, As Illustrated By Retreat, General Justification, And Dangerous Utterances, Kent Greenawalt

Faculty Scholarship

My subject, the problem of precision in criminal codes, is hardly novel. Greater precision has been a major aim of systematic codification, which can specify what behavior is criminal in a way that is more rational, coordinated, and exact than would be possible if liability were determined by occasional statutory enactment, by common-law development, or by a combination of occasional statutes and judicial development. Under this last approach, which was typical in the United States prior to the Model Penal Code, statutes loosely set out the list of offenses and their penalties; critical elements of offenses and many defenses of …

Standards For Organizational Probation: A Proposal To The United States Sentencing Commission, John C. Coffee Jr., Richard Gruner, Christopher D. Stone

Faculty Scholarship

This proposal was prepared by the authors in their capacities as consultants to the United States Sentencing Commission. It has not been adopted or endorsed by the Commission. If adopted, the proposal would constitute Part D(2) of the Sentencing Commission's Organizational Sentencing Guidelines (to be continued in Chapter 8 of the Commission's Guidelines Manual).

The Unmet Challenge Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The last several decades have witnessed an outpouring of serious articles bringing to bear the methods of analytic philosophy to the issues of substantive criminal law. J. L. Austin, a philosopher and not a lawyer, may have been the first to demonstrate the potential of probing legal concepts such as mistake and accident, justification and excuse, for their philosophical potential. H.L.A. Hart carried forward the literature with several path breaking essays on criminal law. It is only in the last few years, however, that we have encountered an explosion of interest in the basic questions of criminal law. As the …

Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch

Faculty Scholarship

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.

RICO's complexity has attracted several efforts to unscramble …

Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch

Faculty Scholarship

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of …

Contributions Of Victimization To Delinquency In Inner Cities, Jeffery Fagan, Elizabeth S. Piper, Yu-Teh Cheng

Faculty Scholarship

The relationship between victimization and criminality has been widely cited in recent years. Early thinking and public perceptions about crime intuitively presumed that criminals were distinct from their victims. Crime control policies resulted which promoted the physical separation of victims from predatory offenders through "target hardening" and "defensible space." Such distinctions, however, ignored the empirical evidence on the considerable overlap between offender and victim profiles and distorted the reality of events in which persons are labelled as victims or victimizers based only on the consequences of the event. Given the homogeneous relation between victim and offender, theories of crime that …

Child Sexual Abuse, Jeffrey A. Fagan

Faculty Scholarship

Over the past two decades awareness of child sexual abuse among academics and professionals has grown from several convergent trends: the "discovery" of child abuse in the 1960's, concern by feminists over sexual assault and rape, increasing reports to law enforcement and child protective service workers of sexually abused children, and the general "deprivatization" of the family. More recently, general public awareness of child sexual abuse has followed well-publicized cases of child molestation in day-care centers, nationwide concern over pornography and its subsequent links to teenage prostitution, and runaway youth, delinquency, and family violence among adults.

A Transaction Theory Of Crime?, George P. Fletcher

Faculty Scholarship

The most difficult questions are foundational. It is no surprise then that one of the most puzzling questions in criminal law frames the whole inquiry: what is the nature of crime? Positivists dispose of the question easily. If the law is whatever the legislature and courts say it is, then crime is whatever these authoritative agencies designate as crime. The question becomes more interesting, however, if we regard crime as a prepositive concept, a concept that exists logically prior to the positive law. It is not that conduct is criminal because the legislature speaks; rather the legislature speaks because conduct …

Some Unwise Reflections About Discretion, George P. Fletcher

Faculty Scholarship

In listening to discussions about discretion in the criminal process, one has the sense of sharply cut distinctions slipping toward a black hole in our language. All decisions by police, prosecutors, judges and jury are routinely called discretionary. This usage pervades respectable, basically sound papers. In a recent article in the Yale Law Journal, Goldstein and Marcus seek to demonstrate that discretion pervades the decisions of French, German and Italian prosecutors. They write: "Claims that prosecutorial discretion has been eliminated, or is supervised closely, are exaggerated. Discretion is exercised in each of the systems [French, German and Italian] for …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

Criminal Coercion And Freedom Of Speech, Kent Greenawalt

Faculty Scholarship

This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

The Metastasis Of Mail Fraud: The Continuing Story Of The Evolution Of A White-Collar Crime, John C. Coffee Jr.

Faculty Scholarship

Justice Cardozo observed that legal principles have a tendency to expand to the limits of their logic, and Judge Friendly has added the corollary that sometimes the expansionary momentum carries the principle even beyond those limits. So it has been with the recent growth in the federal mail fraud law, as courts have applied a standardized formula- known as the "intangible rights" doctrine- to a broad range of fact patterns having relatively little in common. The result has been both to extend the net of the federal criminal sanction over an extraordinarily vast terrain and to arm the federal prosecutor …

Violence – Legal Justification And Moral Appraisal, Kent Greenawalt

Faculty Scholarship

Thought about a "Right to Violence," the subject of this symposium, is difficult. Once one has adjusted to the paradoxical conjunction of the terms "right" and "violence," and recognized that people may have rights to commit violent acts in some circumstances, one must face the disturbing fact that feelings about violence are highly colored by peculiar psychological dispositions and political ideologies. Especially in respect to violence that is committed in defiance of law, the search for fair bases of moral judgment proves elusive.

The main theme of this essay is that the law itself can provide illuminating points of reference …

The Case For Treason, George P. Fletcher

Faculty Scholarship

"If this be treason, make the most of it." Patrick Henry had no fear of the ultimate crime against his King. Nor did the burghers of Maryland who set ablaze the Peggy Stewart in Annapolis Harbor. One would think that for us as Americans the crime of treason would carry special significance. Our nation was born in acts of treason. The threat of prosecution made the crime foremost in the mind of the constitutional draftsmen. Indeed, treason is the only crime to find definition in our basic document.

There are other indications that the crime of treason is central to …

"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.

Faculty Scholarship

In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"

"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."

"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."

"So talk to him," the prosecutor said. "Find out where he stands, and call me."

* * *

"Look," the prosecutor said, "you know I can't …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Faculty Scholarship

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …