Criminal Law Commons^™

The Partial Republican, John O. Mcginnis

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No abstract provided.

Justice Byron White And The Argument That The Greater Includes The Lesser, Michael E. Herz

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Hardening Of The Attitudes: Americans' Views On The Death Penalty, Phoebe C. Ellsworth, Samuel R. Gross

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American support for the death penalty has steadily increased since 1966, when opponents outnumbered supporters, and now in the mid-1990s is at a near record high. Research over the last 20 years has tended to confirm the hypothesis that most people’s death penalty attitudes (pro or con) are based on emotion rather than information or rational argument. People feel strongly about the death penalty, know little about it, and feel no need to know more. Factual information (e.g., about deterrence and discrimination) is generally irrelevant to people’s attitudes, and they are aware that this is so. Support for the death …

Illusion, Illogic, And Injustice: Real-Offense Sentencing And The Federal Sentencing Guidelines, David Yellen

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Beyond Guidelines: The Commission As Sentencing Clearinghouse, David Yellen

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The Case Of The Speluncean Explorers: Contemporary Proceedings, Naomi R. Kahn, John O. Calmore, Mary I. Coombs, Dwight L. Greene, Geofrey C. Miller, Jeremy Paul, Laura W. Stein

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No abstract provided.

The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross

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On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these …

Two Cheers For A Tale Of Three Cities, David Yellen

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No abstract provided.

Coordinating Sanctions For Corporate Misconduct: Civil Or Criminal Punishment, David Yellen, Carl J. Mayer

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The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing

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The article argues that the ban on contingent fees for criminal defense attorneys, established by the American Bar Association in 1969, is outdated and should be repealed. It contends that the ban is rooted in historical prejudice and unfounded concerns about conflicts of interest, rather than empirical evidence. The author suggests that the Supreme Court's 1989 decision implicitly approving contingent fees in certain criminal cases presents an opportunity to reconsider this prohibition. Repealing the ban could benefit middle-class defendants and allow for regulation and data collection to address potential issues.

Should Judges Take Seriously The Sentencing Commission's Standards For Accepting Plea Agreements?, David Yellen

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Of Defamation And Decisionmaking: Wiemer V. Rankin And The Abdication Of Appellate Responsibility, Dale Goble

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The Lockett Paradox: Reconciling Guided Discretion And Unguided Mitigation In Capital Sentencing, Scott E. Sundby

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Use Of Force Against Terrorist Bases: Introduction, Malvina Halberstam

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The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

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Capital Punishment: A Disputation, Peter Lushing

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The article critiques the use of capital punishment, arguing that it is morally flawed, ineffective as a deterrent, and disproportionately applied to marginalized groups. Through a dialogue between a judge and a clerk, it highlights the emotional and societal complexities surrounding the death penalty, ultimately advocating for its abolition in favor of life imprisonment and systemic reforms.

Problem Diskrecije U Americkoj Pravnoj Misli, Charles M. Yablon

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The Tax Reform Act Of 1986: A Response To Professor Yorio And His Vision Of The Future Of The Internal Revenue Code, Edward A. Zelinsky

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Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller

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An eminent legal historian once noted that the fundamental problem of law enforcement in primitive societies is that of the secret offender. The Icelandic legal and dispute processing systems depended on a wrongdoer publishing his deed, or at least committing it in an open and notorious manner. No state agencies existed to investigate and discover the non-publishing wrongdoer. But there were strong normative inducements to wrong openly; one's name was at stake. There was absolutely no honor in thievery, only the darkest shame; the ransmadr, on the other hand, suffered no shame for his successful raids, even if he did …

Sentencing Discretion: Current Trial And Appellate Court Perspectives In Idaho, Donald L. Burnett Jr.

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Transfer Taxation Without Transfer: Reflections On Employer-Provided Death Benefits, Section 2039, Disclaimers, New Forms Of Wealth, And The Evolution Of The Federal Estate Tax, Edward A. Zelinsky

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The Impact Of Executions On Homicides: A New Look In An Old Light, Richard Lempert

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Ehrlich's first point is that if one is searching for deterrence it is the law in action (i.e., the actual incidence of executions) rather than the law on the books (i.e., the presence or absence of the death penalty) which is crucial. His second point is that in order to spot deterrent effects other factors which might affect homicide rates, such as conviction rates and unemployment rates, must be held constant. Many of those who believe that Ehrlich's work is fundamentally flawed nevertheless accept these criticisms. This article follows Sellin's approach but takes account of Ehrlich's criticisms. Instead of comparing …

Extraordinary Writ Practice In Criminal Cases: Analogies For The Military Courts, Edward H. Cooper

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Extraordinary writs have two central functions in the hands of appellate courts. One is to enforce the court's mandate; there is no particular difficulty with this use of the writs, and no more need be said about it. The other function is to circumvent the ordinary channels of appellate review. In this function, writs operate as appeals in all but name. As this use has become more and more routine, it would be more appropriate to speak of them as "appeals writs" rather than extraordinary writs. My assignment is to speak of the experience with appeals writs in criminal cases …

Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam

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This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.

Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing

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This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

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Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

The Assassination Attempt, Yale Kamisar

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From the moment the would-be assassin opened fire until many days after he was found not guilty by reaaon of insanity, the press was fascinated by the case. The very same day that it reported the assassination attempt "in the open street, and in the broad face of day," the Times considered but quickly dismissed the possibility of insanity: "The defndant's purpose was carried out with the most cold-blooded determination. . . . His demeanor throughout was cool and collected, nor did there appear any evidence of insanity." When, several days later, it became plain that the defendant was indeed …

Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing

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The article critiques the Supreme Court's decision in County Court v. Allen, arguing that the Court's approach to evaluating instructed inferences in criminal cases undermines the integrity of the fact-finding process. The central concern is that the Court's methodology, which assesses inferences as applied rather than on their face, fails to address the potential irrationality of such inferences and the pressure they may exert on jurors to convict without thorough consideration of the evidence. The article advocates for a more rigorous standard to ensure the rationality and constitutionality of instructed inferences in criminal trials.

Government Appeals In Criminal Cases: The 1978 Decisions, Edward H. Cooper

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The statute allowing the government to appeal from some forms of trial court defeat in criminal cases, 18 U.S.C.A. § 3731, has a long and tangled history. In its 1970 opinion in United States v. Sisson 9ui the Supreme Court wrestled mightily with a difficult problem under the statute as it then stood, and invited Congress to amend "this awkward and ancient Act." Soon afterward the act was amended. It now provides in part that the government may appeal in a criminal case

from a decision, judgment, or order of a district court dismissing an indictment or information as to …

The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green

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The early English jury was self-informing and composed of persons supposed to have first-hand knowledge of the events and persons in question. The judge instructed the jury on the law, but was himself almost entirely dependent upon the jury for his knowledge of the case. By stating the evidence in a way that made the result it wanted a necessary conclusion, the medieval jury was able to alter the impact of formal rules of law to conform with prevailing social attitudes.