Criminal Law Commons^™

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms And The Local Food Movement, Sarah B. Schindler

Faculty Publications

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive1 actions that people living in urban and suburban communities are undertaking to …

Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Special Tribunal For Lebanon: A Defense Perspective, Charles Chernor Jalloh

Faculty Publications

A fundamental aspect of United States criminal law is the presumption of innocence until proven guilty. A corollary right gives every American a Constitutional right to counsel or the right to represent herself in person if she so chooses. In international criminal law, similar fundamental rights are theoretically offered to accused persons under the statutes of the courts and under general international human rights law. However, unlike the U.S. criminal justice system, international criminal tribunals have generally failed to honor the lofty promises contained in their constitutive instruments. But it is not the principled lack of adherence to ensuring the …

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states …

Is Psychological Research On Self-Control Relevant To Criminal Law?, Paul J. Litton

Faculty Publications

In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in …

Testimonial Is As Testimonial Does, Ben L. Trachtenberg

Faculty Publications

In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold …

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …

Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess

Faculty Publications

South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …

Forget Sentencing Equality: Moving From The “Cracked” Cocaine Debate Toward Particular Purpose Sentencing, Jelani Jefferson Exum

Faculty Publications

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal. This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment. Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Publications

This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. In admitting convictions as impeachment evidence, courts are wrongly assuming that such convictions are necessarily reliable indicators of relative culpability. Courts assume that convictions are the product of a fair fight, that they demonstrate relative culpability, and that they connote moral culpability. But current prosecutorial practice and other data undermine each of these assumptions. Accordingly, this Article proposes that before a conviction is used for impeachment, there should be an assessment of the extent to …

The Year Of Magical Thinking: Fraud, Loss, And Grief, Jayne W. Barnard

Faculty Publications

In The Year of Magical Thinking, her wrenching memoir of the year following the death of her husband John Gregory Dunne, Joan Didion describes the episodes of magical thinking that forestalled her acceptance of Dunne's sudden absence from her life. In the hours after his death, she charged his cell phone. Weeks later, she gave his clothes to charity but kept his shoes because, she thought, "He would need shoes if he were to return."

Modern grief theory tells us that episodes like these are common during the months following a loved one's death, particularly when the death, like …

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.

Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton

Faculty Publications

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …

Shirking, Opportunism, Self-Delusion And More: The Agency Problem Today, Jayne W. Barnard

Faculty Publications

No abstract provided.

Order, Technology And The Constitutional Meanings Of Criminal Procedure, Thomas P. Crocker

Faculty Publications

No abstract provided.

Physician Participation In Executions, The Morality Of Capital Punishment, And The Practical Implications Of Their Relationship, Paul J. Litton

Faculty Publications

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

The First Day Of Criminal Law: Forgetting Everything You Thought You Already Knew, Kami Chavis Simmons

Faculty Publications

Whether from the media or the seemingly endless rotation of Law and Order episodes, many students enter law school with a great deal of knowledge about important concepts that dominate Criminal Law, including murder, manslaughter, conspiracy, self-defense, or insanity. This familiarity with criminal law presents a dual challenge for students and professors alike. First, as future lawyers, they must force themselves to think critically about these familiar topics, and despite their basic knowledge of the criminal justice system, students quickly learn that there is much more to criminal law than meets the eye. Second, part of this critical analysis requires …

Bargaining Practices: Negotiating The Kampala Compromise For The International Criminal Court, Noah Weisbord

Faculty Publications

At the International Criminal Court's (ICC) Review Conference in 2010, the ICC's Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017.

This article explains the bargaining practices of the diplomats that gave rise to this historic development in international law. This article argues that the international-practices framework, as currently conceived, does not adequately capture …

The Mens Rea Of The Crime Of Aggression, Noah Weisbord

Faculty Publications

This article, written in commemoration of the tenth anniversary of the International Criminal Court (ICC), explores the mens rea of the crime of aggression. The definition and jurisdictional conditions of the crime of aggression was recently incorporated into the ICC’s Rome Statute, thereby reviving a crime used during the Nuremberg trials to prosecute Nazi leaders after World War II. Mens rea is an important, even central, consideration when judging whether a defendant has satisfied all of the elements of the crime of aggression.

The starting point for this exploration of the mens rea of the crime of aggression is its …

Does Living By The Sword Mean Dying By The Sword?, Charles Chernor Jalloh

Faculty Publications

What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia. This article examines the right to self-representation in international criminal law. Using a comparative law …

Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh

Faculty Publications

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

What Makes A Crime Against Humanity A Crime Against Humanity?, Charles Chernor Jalloh

Faculty Publications

This article examines what makes a crime against humanity a crime against humanity as opposed to an ordinary offense under domestic criminal law. One answer is to say that any systematic or widespread attack against a civilian population which is sponsored, supported or condoned by the State is a crime against humanity. Another interpretation is that any widespread or systematic attacks against civilians which “infringe on basic human values” should be classified as crimes against humanity. This paper will use the Rome Statute and emerging case law of the International Criminal Court (ICC) to argue that neither of the two …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Charles Chernor Jalloh, Melinda Taylor

Faculty Publications

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

Miranda And Its (More Rights-Protective) International Counterparts, Megan A. Fairlie

Faculty Publications

The goal of this article is to encourage the international legal community to revisit its unexamined acceptance of strategic communications. This can lead to a debate that, at a minimum, should prompt Court supporters — specifically civil society members — to think carefully before engaging in conduct that creates dangerous consequences for the ICC.

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joelle A. Moreno, Brian Holmgren

Faculty Publications

No abstract provided.

Taxpayers As Victims: Taxpayer Harm & Criminalization, Brenner M. Fissell

Faculty Publications

No abstract provided.

Blanket Retroactive Amelioration: A Remedy For Disproportionate Punishments, S. David Mitchell

Faculty Publications

While statutes determine the conditions under which an individual is to be held accountable for their actions and identifies the punishment that shall attach to that conduct, they are not engraved in stone. Laws can and are changed. Legislatures will revisit whether a penalty is too harsh (or too lenient), and amend an existing statute to reflect the legislature’s evaluation of what is contemporaneously appropriate. This re-evaluation of a statutory punishment is ongoing assessment to determine whether the punishment is proportional to the conduct. Blanket retroactive amelioration allows society to correct overly harsh, overreactions and to restore the balance between …

Reflections Of A First-Time Expert Witness, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

On January 2, 2013, I testified as an expert witness at a sentencing hearing in federal district court. It was my first time being qualified as an expert, and my only time testifying in court in any capacity. A couple of months earlier, I had been contacted by an Assistant Federal Public Defender (AFPD) who asked if I’d be interested in being retained as an expert. She was handling the sentencing of a man convicted of child pornography possession, receipt, and transportation, and had read my work criticizing the development of the Federal Sentencing Guidelines provisions for these offenses. …