Criminal Law Commons^™

Foreword: Sacred Violence: Religion And Terrorism, B. Jessie Hill, Adam F. Kinney

Faculty Publications

Forward to the Sacred Violence: Religion and Terrorism, Cleveland, OH, 2008

Prosecuting Aggression, Noah Weisbord

Faculty Publications

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference.

Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …

An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Federal Courts, Deirdre M. Smith

Faculty Publications

Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and …

Tryst Or Terrorists? Financial Institutions And The Search For Bad Guys, Richard K. Gordon

Faculty Publications

Under international standards, financial institutions are required to freeze the accounts of customers identified by government as terrorists or the supporters of terrorism. Financial institutions are also required to monitor client transactions to determine if they suggest terrorism financing. However, financial institutions have been given little guidance as to when a pattern of transactions might suggest terrorism financing. By outsourcing the identification of such patters to financial institutions, governments have abdicated their responsibility and reduced the availability of financial services for clients who fit a popular but inaccurate profile of a terrorist.

Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …

The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …

In Whose "Best Interests"? – An International And Comparative Assessment Of Us Rules On Sentencing Of Juveniles, Jelani Jefferson Exum, John W. Head

Faculty Publications

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old)—including their treatment at the hands of the judicial system—should reflect an assessment of "the best interests of the child". An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child ("CRC"), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the "best interests" principle, by prescribing six key standards national juvenile justice systems are to follow …

The Year Of Truman Capote: Legal Ethics And In Cold Blood, David S. Caudill

Faculty Publications

The purpose of this study is to use Capote’s In Cold Blood as a point of reflection on several ethical obligations of lawyers. In Part I, I focus on Capote’s accounts of the prosecution’s use of expert witnesses, and his suggestion that defense counsel were (i) unable or unwilling to deal with their personal conflicts of interest and (ii) incompetent, the latter of which became the subject of disciplinary investigations and federal court review. In terms of the duties of an advocate, Capote sees the prosecution as going too far, and the defense as failing to go far enough. In …

On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin

Faculty Publications

At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …

Forward: Lessons From The Saddam Trial, Michael P. Scharf

Faculty Publications

Forward to the conference on "Lessons from the Daddam Trial."

But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter

Faculty Publications

This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the …

Capital Punishment In The United States, And Beyond, Paul Marcus

Faculty Publications

This article explores the controversial topic of capital punishment, with a particular focus on its longstanding application in the United States. The use of the death penalty in the US has been the subject of much criticism both domestically and internationally. The numerous concerns addressed in this article relate to the morality of the punishment, its effectiveness, the uneven application of the penalty, and procedural problems. The US Supreme Court has confirmed the constitutionality of capital punishment while striking down particular uses of the death penalty. The US is not, however, alone in executing convicted defendants. Capital punishment is still …

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Faculty Publications

No abstract provided.

'Tis A Gift To Be Simple: A Model Reform Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This essay introducing the June 2006 edition of the Federal Sentencing Reporter (Vol. 18, No. 5) describes two important contributions to the movement for real reform of the federal sentencing system. First, Professor Bowman summarizes the recommendations of the Constitution Project Sentencing Initiative (CPSI) report on federal sentencing. The CPSI report, reproduced in this Issue, cautions against any over-hasty legislative response to the Supreme Court's decision in United States v. Booker, suggests some near-term improvements to the existing federal sentencing system, and then sets out a framework for a reformed and markedly simplified federal sentencing regime. Second, Professor Bowman describes …

The Model Federal Sentencing Guidelines Project: Departures, Model Sentencing Guidelines §5.1, Frank O. Bowman Iii

Faculty Publications

This Article is the twelfth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929. This segment of the project contains rules governing the imposition of sentences …

The Model Federal Sentencing Guidelines Project: Adjustments For Guilty Pleas And Cooperation With The Government, Model Sentencing Guidelines §3.7 - 3.8, Frank O. Bowman Iii

Faculty Publications

This Article is the tenth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929. This segment of the project contains rules addressing cases in which the …

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

The Model Federal Sentencing Guidelines Project: Sentencing Factors Applicable To All Offense Types, Model Sentencing Guidelines §3.1 - 3.6, Frank O. Bowman Iii

Faculty Publications

This Article is the ninth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines.

The Model Federal Sentencing Guidelines Project: A Simplified Economic Crimes Guideline, Model Sentencing Guidelines §2b1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the third of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

The Model Federal Sentencing Guidelines Project: A Simplified Sentencing Grid, Model Sentencing Guidelines §1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the first of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines", available on SSRN at http://ssrn.com/abstract=927929.

The Year Of Jubilee Or Maybe Not: Some Preliminary Observations About The Operation Of The Federal Sentencing System After Booker, Frank O. Bowman Iii

Faculty Publications

This segment of the project contains the offense seriousness portion of the simplified sentencing table employed in the Model Sentencing Guidelines. The Article also contains drafter's commentary explaining the offense seriousness scale of the table, how it interacts with other portions of the Model Guidelines, and the policy choices behind the simplified table.

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …

Culture In Our Midst, Elaine M. Chiu

Faculty Publications

Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and …

Culture As Justification, Not Excuse, Elaine M. Chiu

Faculty Publications

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants …

The New Religious Prisons And Their Retributivist Commitments, Marc O. Degirolami

Faculty Publications

The rise of the religious, or "faith-based," prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are some indications, though preliminary, inconclusive, and hotly contested, that inmates who participate in religious instruction and “programming” recidivate at lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists. …

Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter

Faculty Publications

This analysis begins with an examination of the Court's Eighth Amendment jurisprudence and how this impacts the procedures that are required in a capital trial. Then we will present a brief review of habeas corpus law and the barriers that have been imposed to restrict federal court review of claims. We will explain how AEDPA modified the ability of a petitioner to get evidentiary hearings and imposed restrictions on the filling of second or successive petitions. Then, we will look at circumstances in which claims of innocence may be raised in a petition for habeas corpus. Finally, we will compare …

The Model Federal Sentencing Guidelines Project: Determining The Sentencing Range And The Sentence Within Range, Model Sentencing Guidelines §1.2 - 1.8 , Frank O. Bowman Iii

Faculty Publications

This Article is the second of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

The Right To Counsel In Criminal Cases, A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Publications

No abstract provided.

Punishing Children In The Criminal Law, Cynthia V. Ward

Faculty Publications

No abstract provided.

Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs

Faculty Publications

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of …