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Articles 211 - 240 of 409
Full-Text Articles in Criminal Law
Lethal Injection Chaos Post-Baze, Deborah W. Denno
Lethal Injection Chaos Post-Baze, Deborah W. Denno
Faculty Scholarship
In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little …
Military Veterans, Culpability, And Blame, Youngjae Lee
Military Veterans, Culpability, And Blame, Youngjae Lee
Faculty Scholarship
Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are …
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
Faculty Scholarship
This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff
Faculty Scholarship
This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green
Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green
Faculty Scholarship
In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …
"No Older 'N Seventeen": Defending In Dylan Country, Abbe Smith
"No Older 'N Seventeen": Defending In Dylan Country, Abbe Smith
Fordham Urban Law Journal
This article is about an actual experience the author had defending a teenager accused of a serious crime where Bob Dylan grew up-- the Minnesota Iron Range. In order to protect the young man's privacy, it does not divulge the actual time period of the case. Likewise, details about his life and the charges he was facing have been changed. His name has been changed to Jamal. Things did not go well for Jamal. Though a child when he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the …
When The Law Doesn't Work, Richard H. Underwood
When The Law Doesn't Work, Richard H. Underwood
Fordham Urban Law Journal
This Article looks at Dylan songs and traces them back to "true crime" to relate Dylan to the law. It looks at "Ballad of Hollis Brown," "Ballad of Donald White," "The Lonesome Death of Hattie Carroll," "Hurricane," "Percy's Song," and "Talking Bear Mountain Picnic Massacre Blues." Part I looks at Dylan's traditional songs. Part II looks at Dylan's finger-pointing songs. Finally, part III looks at "Bad Judge Ballads."
How Many Lives Has Victor Streib Saved? A Tribute, Deborah W. Denno
How Many Lives Has Victor Streib Saved? A Tribute, Deborah W. Denno
Faculty Scholarship
No abstract provided.
The Micro And Macro Causes Of Prison Growth, John F. Pfaff
The Micro And Macro Causes Of Prison Growth, John F. Pfaff
Faculty Scholarship
No abstract provided.
From Sounds Bites To Sound Policy: Reclaiming The High Ground In Criminal Justice Policy-Making, Anthony C. Thompson
From Sounds Bites To Sound Policy: Reclaiming The High Ground In Criminal Justice Policy-Making, Anthony C. Thompson
Fordham Urban Law Journal
In this article, the author contemplates the way the criminal justice system is portrayed in the media and suggests how the media's emphasis on "sound bites" - which makes it difficult to separate fact from hype - has had significant policy ramifications. The author makes a point of exploring the many ways that conceptions of crime are formed and influenced, as well as how the media has shaped legislation. In the author's opinion, in order to curb the excessive influence of most mainstream representations of the criminal justice system, there must be some mechanism for oversight of both the media …
Excluding Coerced Witness Testimony To Protect A Criminal Defendant's Right To Due Process Of Law And Adequately Deter Police Misconduct, Katherine Sheridan
Excluding Coerced Witness Testimony To Protect A Criminal Defendant's Right To Due Process Of Law And Adequately Deter Police Misconduct, Katherine Sheridan
Fordham Urban Law Journal
This Note argues that the Due Process Clause must protect criminal defendants from the admission of an involuntary statement made by a witness. Part I discusses the history of the use of involuntary statements, specifically the justifications for the exclusion of coerced confessions. Part II examines how various courts have addressed the issue and have come to different conclusions. Part III explains why involuntary witness statements should be excluded under the Due Process Clause in criminal trials.
Inherently Female Cases Of Child Abuse And Neglect: A Gender-Neutral Analysis, Suzanne D'Amico
Inherently Female Cases Of Child Abuse And Neglect: A Gender-Neutral Analysis, Suzanne D'Amico
Fordham Urban Law Journal
Tabitha Walrond was a young mother who was found guilty of criminally negligent homicide after her two-month-old son died from malnutrition. This Comment examines how the portrayal of Ms. Walrond by the defense and prosecution, and in the media reflects gender stereotypes in the criminal law and society. The Comment posits the notion that Ms. Walrond was portrayed as either a good or bad mother and once so labeled, the judge, jury and prosecution view her as such, while ignoring her specific situation. As a result, a defendant such as Ms. Walrond may be treated either too harshly or too …
When Is It Wrong To Trade Stocks On The Basis Of Non-Public Information?: Public Views Of The Morality Of Insider Trading, Stuart P. Green, Matthew B. Kugler
When Is It Wrong To Trade Stocks On The Basis Of Non-Public Information?: Public Views Of The Morality Of Insider Trading, Stuart P. Green, Matthew B. Kugler
Fordham Urban Law Journal
No abstract provided.
Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno
Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno
Faculty Scholarship
This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …
Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green
Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green
Faculty Scholarship
No abstract provided.
The 'New' Exclusionary Rule Debate: From 'Still Preoccupied With 1985' To 'Virtual Deterrence', Donald A. Dripps
The 'New' Exclusionary Rule Debate: From 'Still Preoccupied With 1985' To 'Virtual Deterrence', Donald A. Dripps
Fordham Urban Law Journal
The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court's cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for …
Introduction To Symposium: The Future Of The Exclusionary Rule And The Aftereffects Of The Herring And Hudson Decisions, Barry Kamins
Introduction To Symposium: The Future Of The Exclusionary Rule And The Aftereffects Of The Herring And Hudson Decisions, Barry Kamins
Fordham Urban Law Journal
This article is an introduction the symposium, "The Future of the Exclusionary Rule and the Aftereffects of the Herring and Hudson Decisions," hosted by the Fordham Urban Law Journal. The symposium explored the effects of the Supreme Court’s decisions in Herring v. United States and Hudson v. Michigan—what the Supreme Court will do with the Rule in the future, as well as varying interpretations of what the Supreme Court should do. The federal exclusionary rule, which is approaching its 100th anniversary, was extended to the states almost fifty years ago by the Supreme Court in its landmark decision of Mapp …
Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys
Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys
Fordham Urban Law Journal
In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary …
Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard A. Leo
Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard A. Leo
Fordham Urban Law Journal
The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as …
Databases, Doctrine, And Constitutional Criminal Procedure, Erin Murphy
Databases, Doctrine, And Constitutional Criminal Procedure, Erin Murphy
Fordham Urban Law Journal
Over the past twenty years there has been an explosion in the creation, availability, and use of criminal justice databases. Large scale database systems now routinely influence law enforcement decisions ranging from formal determinations to arrest or convict an individual to informal judgments to subject a person to secondary pre-flight screening or investigate possible gang membership. Evidence gathered from database-related sources is now commonly introduced, and can play a pivotal proof role, in criminal trials. Although much has been written about the failure of constitutional law to adequately respond to the threat to privacy rights posed by databases, less attention …
The Durability Of Prison Populations, John F. Pfaff
The Durability Of Prison Populations, John F. Pfaff
Faculty Scholarship
No abstract provided.
Neuroscience, Cognitive Psychology, And The Criminal Justice System, Deborah W. Denno
Neuroscience, Cognitive Psychology, And The Criminal Justice System, Deborah W. Denno
Faculty Scholarship
No abstract provided.
A "New Beginning" For Adolescents In Our Criminal Justice System, Judith S. Kaye
A "New Beginning" For Adolescents In Our Criminal Justice System, Judith S. Kaye
Fordham Urban Law Journal
As I step away from the bench, I am feeling more than ever what Dr. Martin Luther King called “the fierce urgency of now.” Now is the time for all of us who care about justice in this country to roll up our sleeves and get to work. We may be in a moment of crisis, but as the saying goes, a crisis is a terrible thing to waste. We urgently need to change our focus from jails and prisons to treatment, education, job training. So where is the “new beginning”? The “new beginning” is not a search for new …
Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy , Kimani Paul-Emile
Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy , Kimani Paul-Emile
Faculty Scholarship
This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model …
Rethinking Criminal Law And Family Status , Dan Markel, Ethan J. Leib, Jennifer M. Collins
Rethinking Criminal Law And Family Status , Dan Markel, Ethan J. Leib, Jennifer M. Collins
Faculty Scholarship
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the …
Ethically Representing A Lying Cooperator: Disclosure As The Nuclear Deterrent, Bruce A. Green
Ethically Representing A Lying Cooperator: Disclosure As The Nuclear Deterrent, Bruce A. Green
Faculty Scholarship
No abstract provided.
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Future Of Appellate Sentencing Review: Booker In The States, The Symposium: Criminal Appeals: Sentencing Appeals, John F. Pfaff
Future Of Appellate Sentencing Review: Booker In The States, The Symposium: Criminal Appeals: Sentencing Appeals, John F. Pfaff
Faculty Scholarship
In this Article, I look at the theoretical implications of the United States Supreme Court‘s recent contradictory sentencing cases, and I then examine how they are playing out in practice at the state level. Though Booker purports to follow, not repudiate, Blakely, its view of the role of appellate courts is wholly inconsistent with Blakely‘s view. Many states have sidestepped this contradiction by simply following Blakely and ignoring the option laid out in Booker. But at least three states have chosen to pass through the door opened by Booker. Their experiences allow us to examine the implications of Booker and …
Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn From Their Lawyers' Mistakes Symposium: New Perspectives On Brady And Other Disclosure Obligations: What Really Works, Bruce A. Green
Faculty Scholarship
Prosecutors, criminal defense lawyers, judges, and legal academics from around the country recently met at the Benjamin N. Cardozo School of Law in New York to discuss prosecutors' compliance with their disclosure obligations. The overarching question was how prosecutors' offices could do a better job. To assist representatives of the legal profession in approaching this question from new directions, the Symposium organizers invited speakers from outside the legal profession to talk about the causes of error and methods used to reduce error in other contexts. One of the themes was that, outside the practice of law, individuals and institutions learn …