Criminal Law Commons^™

Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller

Journal Articles

Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly …

Punishment Theory: Moral Or Political?, Guyora Binder

Journal Articles

This article argues that the justification of punishment is best conceived as a problem of political theory rather than moral philosophy. Noting the familiar charge that utilitarianism permits framing the innocent, it argues that retributivism is equally vulnerable to the charge that it permits lynching the guilty. It argues that both critiques unfairly attribute lawlessness and dishonesty to the respective punishment theories. As a result, they mischaracterize both as theories about what individuals should do, rather than what acts legitimate government should authorize. In so doing, they disregard how committed the founders of the respective theories were to the rule …

The Rhetoric Of Motive And Intent, Guyora Binder

Journal Articles

This article offers a critical analysis of the traditional maxim that motive is irrelevant to criminal liability. It retraces the history of this principle to show how its meaning has changed and its validity has declined over time. Originally promoted by reformers, the irrelevance of motive maxim derived meaning from their efforts to codify criminal law. In this context, the irrelevance of motive stood for two related reforms: (1) legislators should condition criminal liability on expectations of harm rather than desires, and (2) courts should require proof of statutory mental elements. With the success of codification, however, the irrelevance of …

A New Legal Realism For Criminal Procedure, Robert Weisberg

Buffalo Law Review

Book review of Marc L. Miller & Ronald F. Wright's Criminal Procedure: Cases, Statutes, and Executive Materials

Transgressing The Border Between Protection And Empowerment For Domestic Violence Victims And Older Children: Empowerment As Protection In The Foster Care System, Susan Vivian Mangold

Journal Articles

No abstract provided.

Keeping The Government's Hands Off Our Bodies: Mapping A Feminist Legal Theory Approach To Privacy In Cross-Gender Prison Searches, Teresa A. Miller

Journal Articles

The power of privacy is diminishing in the prison setting, and yet privacy is the legal theory prisoners rely upon most to resist searches by correctional officers. Incarcerated women in particular rely upon privacy to shield them from the kind of physical contact that male guards have been known to abuse. The kind of privacy that protects prisoners from searches by guards of the opposite sex derives from several sources, depending on the factual circumstances. Although some form of bodily privacy is embodied in the First, Fourth, Eighth, and Fourteenth Amendments, prisoners challenging the constitutionality of cross-gender searches most commonly …

When Are Children Adults? Juveniles On Trial As Adults: Adults On Trial As Juveniles, Suzanne M. Knight

Buffalo Women's Law Journal

No abstract provided.

The Influence Of Pornography On Rape And Violence Against Women: A Social Science Approach, Dana A. Fraytak

Buffalo Women's Law Journal

No abstract provided.

Karo Kari: Honor Killing, Wendy M. Gonzalez

Buffalo Women's Law Journal

No abstract provided.

Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder

Book Reviews

Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications …

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller

Journal Articles

In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.

The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …

Patterns Of Injustice: Police Brutality In The Courts, Susan Bandes

Buffalo Law Review

No abstract provided.

Rights For The Rape Victim: Lifting Statute Of Limitations For Prosecution Of Violent Crimes, Suzanne M. Knight

Buffalo Women's Law Journal

No abstract provided.

The Brzonkala Case & The Violence Against Women Act Of 1994, Jacqueline Druar

Buffalo Women's Law Journal

No abstract provided.

Culture And Crime: Kargar And The Existing Framework For A Cultural Defense, Nancy A. Wanderer, Catherine R. Connors

Buffalo Law Review

No abstract provided.

Regulating The Market For Snitches, Ian Weinstein

Buffalo Law Review

No abstract provided.

Youthful Offender Status And The Reproduction Of Juvenile Justice Within Systems Of Criminal Justice: The Case Of William Shrubsall, Simon I. Singer

Buffalo Public Interest Law Journal

No abstract provided.

Making Pedophiles Take Their Medicine: California's Chemical Castration Law, Kathryn L. Smith

Buffalo Public Interest Law Journal

No abstract provided.

Mothers Who Kill Their Children, Stuart S. Gordan

Circles: Buffalo Women's Journal of Law and Social Policy

No abstract provided.

Mandatory Hiv Testing For Convicted Or Accused Sex Offenders: Toward A Model Scheme, Kimberly Smith

Circles: Buffalo Women's Journal of Law and Social Policy

No abstract provided.

30=20: "Understanding" Maximum Sentence Enhancements, Frank R. Herrmann

Buffalo Law Review

No abstract provided.

The Open Door: Will The Right To Die Survive Washington V. Glucksberg And Vacco V. Quill?, Adam J. Cohen

In the Public Interest

No abstract provided.

Regulating Rites: Legal Responses To Female Genital Mutilation In The West, Carol M. Messito

In the Public Interest

No abstract provided.

Recidivist Statutes As Arational Punishment, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Poorhouse Justice: Underfunded Indigent Defense Services And Arbitrary Death Sentences, Douglas W. Vick

Buffalo Law Review

No abstract provided.

A Life Preserver For Battered Immigrant Women: The 1990 Amendments To The Immigration Marriage Fraud Amendments, Maxine Yi Hwa Lee

Buffalo Law Review

No abstract provided.

Regulating The Tender Heart When The Axe Is Ready To Strike, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Victims' "Rights" Or A Fair Trial Wronged?, Christopher R. Goddu

Buffalo Law Review

No abstract provided.