Criminal Law Commons^™

The Collapse Of The Harm Principle, Bernard Harcourt

Faculty Scholarship

In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Three additional liquor establishments were voted shut in February 1999. Along with the fourteen other neighborhoods that passed dry votes in 1996 and those that went dry right after Prohibition, to date more than 15% of Chicago has voted itself dry. The closures affect alcohol-related businesses, like liquor stores and bars, but do not restrict drinking in the privacy of one's hoifie. The legal mechanism is an arcane 1933 "vote yourself dry" law, …

Grand Jury Secrecy: Plugging The Leaks In An Empty Bucket, Daniel Richman

Faculty Scholarship

Although people can quarrel about the significance or reliability of Independent Counsel Kenneth Starr's investigative findings, no one can deny that his investigation produced new law. We now know that the attorney-client privilege survives the death of the client, that government lawyers may not rely on that privilege to shield communications from their "client" relating to criminal misconduct, and that there is no "protective function privilege" (at least not yet), While bringing some clarity to certain areas, the Independent Counsel's investigation also highlighted the confused state of the law relating to Rule 6(e)'s grand jury secrecy provisions.

Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Uniqueness Of Federal Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.

Crime And Work, Jeffrey Fagan, Richard B. Freeman

Faculty Scholarship

Crime and legal work are not mutually exclusive choices but represent a continuum of legal and illegal income-generating activities. The links between crime and legal work involve trade-offs among crime returns, punishment costs, legal work opportunity costs, and tastes and preferences regarding both types of work. Rising crime rates in the 1980s in the face of rising incarceration rates suggest that the threat of punishment is not the dominant cost of crime. Crime rates are inversely related to expected legal wages, particularly among young males with limited job skills or prospects. Recent ethnographic research shows that involvement in illegal work …

The Intersection Of Peremptory Challenges, Challenges For Cause, And Harmless Error, William G. Childs

Faculty Scholarship

The Author provides a history and overview of peremptory challenges and their relationship with challenges for cause. Part I of the Article outlines the various types of state statutes and state case law related to the mandatory or permissive use of peremptory challenges to correct perceived error in deciding challenges for cause.

Part II includes a discussion of the current law of error analysis in the federal courts and recent trends in that area of law. Part III consists of a review of the Supreme Court case law involving error analysis and peremptory challenges. This Part examines the specific situation, …

Foreword, Elizabeth S. Scott

Faculty Scholarship

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers …

Punishment Or Treatment For Adolescent Offenders: Therapeutic Integrity And The Paradoxical Effects Of Punishment, Jeffrey A. Fagan

Faculty Scholarship

Throughout much of its history, the American juvenile court maintained a goal of rehabilitation of the individual, and placed custody and punishment as secondary or ancillary goals in the pursuit of "remaking the child's character and lifestyle." To its founders, the development of a separate juvenile court reflected a fundamental distinction between sanctions based on characteristics of the offender, and punishment based on the offense. Juvenile court dispositions were designed to determine why the child was in court, and what could be done to avoid future appearances. Judge Julian Mack's classic statement of the original theory of the juvenile court …

Context And Culpability In Adolescent Crime, Jeffrey A. Fagan

Faculty Scholarship

This Essay merges the perspectives of context and decision-making to assess the role of contextual factors in the unfolding of violent events by adolescents. The framework for decision-making assumes that context is a dynamic rather than a static feature of the cognitive landscape. Decisions by adolescents to engage in crime or violence are shaped through interactions with features of their environments, are contingent on responses emanating from that context, and are filtered through the unique lens of adolescence. Rather than assuming discrete and independent components in a decision framework, this Essay assumes that decisions are the product of interactions across …

Proportionality As An Ethical Precept For Prosecutors In Their Investigative Role, Rory K. Little

Faculty Scholarship

No abstract provided.

Lawyering Up, Susan Bandes, Jack M. Beermann

Faculty Scholarship

The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore …

Slashing And Burning Prisoners Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Facilitating Accountability: International Guidelines Against Impunity, Madeline Morris

Faculty Scholarship

No abstract provided.

Life Before The Modern Sex Offender Statutes , Deborah W. Denno

Faculty Scholarship

This Article examines the social and legal developments that fueled the origins and recurring problems of sex offender laws. Part I of this Article discusses the primary precursors of the sexual psychopath statutes that encouraged the public's and politicians' acceptance of the concept of sexual psychopathy: the increasing sexualization of American society, changes in gender roles and relations, the valuation of children and the family unit, and the influx of psychiatry. Part II describes how the diagnosis of sexual psychopathy slowly developed as a result of the criminal justice system's growing tendency to explain criminal behavior in psychoanalytic terms. Part …

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Evan Tsen Lee, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Section 2254(D) Of The New Habeas Statute: An (Opinionated) User's Manual, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

The Ban On Welfare For Felony Drug Offenders: Giving A New Meaning To 'Life Sentence', Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Crime In Public Housing: Clarifying Research Issues, Jeffrey A. Fagan, Tamara Dumanovsky, J. Phillip Thompson, Garth Davies

Faculty Scholarship

In recent years, crime and public housing have been closely linked in our political and popular cultures. Tragic episodes of violence have reinforced the notion that public housing is a milieu with rates of victimization and offending far greater than other locales. However, these recent developments belie the complex social and political evolution of public housing from its origins in the 1930s, through urban renewal, and into the present.

Stereotypes abound about public housing, its management, residents, and crime rates. In reality, variation is the norm, and it is these variations that affect crime. The study of crime in public …

Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.

Faculty Scholarship

Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …

Towards A Model Penal Code, Second (Federal?): The Challenge Of The Special Part, Gerard E. Lynch

Faculty Scholarship

The Model Penal Code is among the most successful academic law reform projects ever attempted. In the first two decades after its completion in 1962, more than two-thirds of the states undertook to enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting point. The Model Penal Code was influential in a variety of different ways. First, the very notion of a systematic codification of criminal law received a dramatic boost from the Model Penal Code. Apart from the degree to which any particular state recodification resembled the Model Penal …

Our Administrative System Of Criminal Justice, Gerard E. Lynch

Faculty Scholarship

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart.

Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a …

Law, Language And Lenity, Lawrence Solan

Faculty Scholarship

No abstract provided.

Kahan On Mistakes, Daniel B. Yeager

Faculty Scholarship

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts
of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan …

The Crisis In The Ideology Of Crime, John L. Diamond

Faculty Scholarship

No abstract provided.

Slashing And Burning Prisoners' Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not …

Declining Homicide In New York City: A Tale Of Two Trends, Jeffery Fagan, Franklin E. Zimring, June Kim

Faculty Scholarship

The mass media pay plenty of attention to crime and violence in the United States, but very few of the big stories on the American crime beat can be classified as good news. The driveby shootings and carjackings that illuminate nightly news broadcasts are the opposite of good tidings. Most efforts at prevention and law enforcement seem more like reactive attempts to contain ever expanding problems rather than discernable public triumphs. In recent American history, crime rates seem to increase on the front page and moderate in obscurity.

The recent decline in homicides in New York City is an exception …

Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein

Faculty Scholarship

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in …

The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman

Faculty Scholarship

From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely …

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …