Criminal Law Commons^™

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Part 2, Paul Marcus, Vicki Waye

Faculty Publications

No abstract provided.

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

International Decision, African Court On Human And Peoples’ Rights, Michelot Yogogombaye V. Republic Of Senegal, Charles Chernor Jalloh

Faculty Publications

State Parties have automatic access to the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania. In stark contrast, individuals and NGOs (i.e. those most likely to bring cases alleging human rights violations), can only initiate proceedings if the respondent State has entered a special declaration accepting the Court’s competence to receive such cases. Predictably, in a continent rife with human rights violations, only a few African States have accepted the Court’s jurisdiction to hear such (individual or NGO) petitions since its formal creation in June 1998. After years without hearing any cases, the Court finally received a …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii

Faculty Publications

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

Preempting Justice: “Precrime” In Fiction And In Fact, Mark C. Niles

Faculty Publications

(Excerpt)

In the opening scene of Steven Spielberg’s 2002 film adaptation of Philip K. Dick’s short story The Minority Report, we see stylistically edited, disjointed images that appear to depict a man murdering two lovers. It is soon made clear that the images are the video representations of precognitive predictions of a future crime that were made by members of a futuristic crime prevention agency.

Later in the film, we see the same man, at home with his wife—the woman he is shown murdering in the earlier images—and it becomes clear that we are watching the last few moments …

Why March To A Uniform Beat? Adding Honesty And Proportionality To The Tune Of Federal Sentencing, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

This Article fills a gap in current scholarship concerning the Federal Sentencing Guidelines ("Guidelines") by bringing together many sentencing concerns and refocusing them on the Guidelines themselves. Since United States v. Booker, in which the Supreme Court demoted the Guidelines from mandatory to advisory status and imposed reasonableness as the appellate standard of review, several scholars have written about the new, advisory Guidelines scheme. Some have focused on the constitutional problems that Booker failed to settle. Others have argued against a presumption of reasonableness for within-Guidelines sentences. For some scholars, the biggest issues with the advisory Guidelines regime …

"Over-Kill": The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Publications

(Excerpt)

On October 31, 2007, a jury in Bronx County, New York convicted Edgar Morales, a gang member, of manslaughter in the first degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and conspiracy in the second degree. Those convictions arose out of a shooting that occurred on August 18, 2002. That night, Mr. Morales and a group of his friends "showed up uninvited at a christening party at St. Paul's Lutheran Church" in New York City. Sometime that evening, "several people commandeered the disc jockey's microphone, and before long a fight broke …

The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami

Faculty Publications

The very first time that I taught criminal law, I would occasionally tell my six-year-old son, Thomas, about selected cases and situations that I had come across. Thomas enjoyed these discussions—more than I would have guessed: he was captivated by the horror of Dudley & Stephens, he was uncomfortably intrigued by shaming punishments, he was appropriately outraged at all manner of outcomes that seemed to him too harsh or too lenient. But most of all, he wanted to test his own burgeoning intuitions about right and wrong, good and evil, the permitted and the forbidden, against my "criminal law stories." …

Prosecutorial Discretion In The Shadow Of Advisory Guidelines And Mandatory Minimums, Michael A. Simons

Faculty Publications

(Excerpt)

Imagine the following rather run-of-the-mill crime spree:

Three young men, ranging in age from eighteen to twenty and without significant criminal histories, get together to rob a convenience store in New York City. They take an unloaded an inoperable gun, go into the store, point the gun at the clerk behind the counter, and take a few hundred dollars from the cash register. Flush with success, they decide to do it again, this time at a jewelry store down the block. One of the young men points the unloaded gun at the store employees, another stands guard by the …

Morality And Markets: A Comment On Predicting Crime, Miriam A. Cherry

Faculty Publications

(Excerpt)

In their article, Predicting Crime, Professors Henderson, Wolfers, and Zitzewitz propose an intriguing and futuristic series of market-based models surrounding the broad topic of crime prevention. Harnessing widely dispersed knowledge among groups of people, including cops on the beat, criminologists, residents of neighborhoods, elected officials, snitches, and possibly even the criminals themselves, the authors posit that prediction markets will help to estimate crime statistics more accurately and therefore result in more efficient deployment of policing resources. Further, they hypothesize that posing particular policy alternatives—for example, the option of eliminating the death penalty—to a widely dispersed market will result …

Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet …

Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman

Faculty Publications

I want to tell you the story of how I've come to see a woman I call Eva. It's more than just Eva's story, which is interesting in itself; it's also my story, puny like a pinky.

The story starts on a frigid February morning in 1992, when my friend Jack, a criminal defense lawyer with a solo-practice in downtown Chicago, called to talk with me about his sixteen-year-old client, Eva, who had hidden her pregnancy from her family and then given birth in a toilet. Her case was going to trial. He had never heard a story like hers. …

Heinous, Atrocious, And Cruel: Apprendi, Indeterminate Sentencing, And The Meaning Of Punishment, W. David Ball

Faculty Publications

Under Apprendi v. New Jersey, any fact that increases an offender's maximum punishment must be found by a jury beyond a reasonable doubt. The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences-that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.

In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In …

Conceptualizing Aggression, Noah Weisbord

Faculty Publications

The special working group tasked by the International Criminal Court’s Assembly of States Parties to define the supreme international crime, the crime of aggression, has produced a breakthrough draft definition.

This paper analyzes the key concepts that make up the emerging definition of the crime of aggression by developing and applying a future-oriented methodology that brings together scenario planning and grounded theory. It proposes modifications and interpretations of the constituent concepts of the crime of aggression intended to make the definition sociologically relevant today and in the foreseeable future.

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

Regionalizing International Criminal Law?, Charles Chernor Jalloh

Faculty Publications

This article examines the initially cooperative but increasingly tense relationship between the International Criminal Court (ICC) and Africa. It assesses the various legal and political reasons for the mounting criticisms of the ICC by African governments, especially within the African Union (AU), following the indictment of incumbent Sudanese President Omar Hassan Al Bashir. The author situates the ICC within broader African efforts to establish more peaceful societies through the continent-wide AU. He submits that the ICC, by prosecuting architects of serious international crimes in Africa’s numerous conflicts, could contribute significantly to the continent’s fledgling peace and security architecture which aims …

Dismissed With Prejudice: Why Application Of The Anti-Jury Impeachment Rule To Allegations Of Racial, Religious, Or Other Bias Violates The Right To Present A Defense, Colin Miller

Faculty Publications

No abstract provided.

The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli

Faculty Publications

The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …

No Way Out? The Question Of Unilateral Withdrawals Of Referrals To The Icc And Other Human Rights Courts, Michael P. Scharf, Patrick Dowd

Faculty Publications

Growing out of the authors' work for the International Criminal Court, which was sponsored by a grant from the Open Society Institute, No Way Out examines one of the most vexing legal questions facing the International Criminal Court - whether a State that has referred a case to the Court can subsequently withdraw its referral as part of a domestic peace agreement? The issue has arisen with respect to Uganda's interest in withdrawing its self-referral as part of a peace deal with the leaders of the Lord's Resistance Army. This article examines the Rome Statute, the drafting history, and the …

Foreword: Combating Terrorist Financing, Richard K. Gordon, Christyn Rossman

Faculty Publications

Forward to the Case Western Reserve University School of Law's Institute for Global Security Law and Policy symposium The World Conference on Combating Terrorist Financing, Cleveland, OH, April 10 to 11, 2008

International Law And The Torture Memos, Michael P. Scharf

Faculty Publications

This article explores the influence of international law in the evolution of the Bush Administration's policies toward detainees in the global war on terror. The detainee case study provides a modern lens for evaluating Jack Goldsmith and Eric Posner's hypothesis set forth in THE LIMITS OF INTERNATIONAL LAW that international law exerts no “compliance pull” on American policymakers in times of crisis.

Prosecutors As Punishment Theorists: Seeking Sentencing Justice, Michael A. Simons

Faculty Publications

(Excerpt)

It is a truism that prosecutors are called not just to win, not just to zealously represent their clients, but rather to "seek justice." What this admonition means in practice, however, is notoriously slippery. Most obviously, it means that prosecutors should not convict (or charge) the innocent. It is also quite commonly understood to mean that prosecutors should "play by the rules" and should ensure that defendants are afforded a fair process. More fundamentally, it means that prosecutors should ensure that the power of the state is wielded judiciously. In other words, the prosecutor has an obligation not just …

Culpability In Creating The Choice Of Evils, Marc O. Degirolami

Faculty Publications

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …

Proportional Deportation, Angela M. Banks

Faculty Publications

No abstract provided.

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James E. Coleman, Angela Davis, K.C. Johnson, Lyrissa Lidsky

Faculty Publications

The genesis of this panel is an essay I wrote arguing that the single moniker "Duke lacrosse controversy" encapsulates a broad, multi-faceted legal, political, and social controversy that more accurately consists of five related seriatim sub-controversies. Initially, it was a sexual assault case. An African-American woman, hired as an exotic dancer at a party thrown by members of the Duke University men's lacrosse team, reported to Durham police that she had been sexually assaulted by several white team members. The allegations quickly became a national story, tinged with issues of race, class, gender, privilege, and at some level, the role …

Stories Of Crime, Trials, And Appeals In Civil War Era Missouri, Frank O. Bowman Iii

Faculty Publications

This paper explores criminal appellate practice in Missouri from the time of statehood in 1821 until the 1870s, with particular focus on the decades before and after the Civil War. The article uses the stories of three trials in and around Columbia, Missouri - an attempted rape case against a slave that resulted in a lynching, a murder case against a white farmer that ended in his execution, and another murder case successfully appealed - to explore the legal culture of the period. All three trials involved two prominent central Missouri lawyers, James S. Rollins and Odon Guitar, who were …

Obstacles On The Road To Gender Justice: The International Criminal Tribunal For Rwanda As Object Lesson, Beth Van Schaack

Faculty Publications

Although the substantive law concerned with gender violence is now well established, and the principle of legality can no longer serve as a barrier to prosecutions for gender violence, significant obstacles remain to ensuring a robust system of gender justice in international criminal law in the face of continued violations. These obstacles are less visible than defects in positive law because they emerge in the practice of international criminal law at crucial yet shrouded stages of the penal process: investigation, charging, pre-trial plea negotiations, trial preparation, theprovision of protective measures, and appeals. Most importantly, strong positive law is irrelevant where …

Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone

Faculty Publications

No abstract provided.

Securities Fraud, Recidivism, And Deterrence, Jayne W. Barnard

Faculty Publications

Legal scholars have expended considerable energy on the study of high-level securities fraud violators-Ken Lay, Bernie Ebbers, Dennis Kozlowski, etc. There has been little attention, however, to the perpetrators of "retail" securities fraud-the con artists who sell bogus stock over the Internet, orchestrate elaborate pump-and-dump schemes, and create a never-ending array of purportedly "risk free" investment opportunities. Collectively, and in a cruel mockery of capitalism, these offenders extract hundreds of millions dollars from investors each year. In this article, Professor Barnard examines this group of offenders, focusing particularly on those who recidivate-often moving from state to state and scheme to …