Criminal Law Commons^™

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

The Metastasis Of Mail Fraud: The Continuing Story Of The Evolution Of A White-Collar Crime, John C. Coffee Jr.

Faculty Scholarship

Justice Cardozo observed that legal principles have a tendency to expand to the limits of their logic, and Judge Friendly has added the corollary that sometimes the expansionary momentum carries the principle even beyond those limits. So it has been with the recent growth in the federal mail fraud law, as courts have applied a standardized formula- known as the "intangible rights" doctrine- to a broad range of fact patterns having relatively little in common. The result has been both to extend the net of the federal criminal sanction over an extraordinarily vast terrain and to arm the federal prosecutor …

Violence – Legal Justification And Moral Appraisal, Kent Greenawalt

Faculty Scholarship

Thought about a "Right to Violence," the subject of this symposium, is difficult. Once one has adjusted to the paradoxical conjunction of the terms "right" and "violence," and recognized that people may have rights to commit violent acts in some circumstances, one must face the disturbing fact that feelings about violence are highly colored by peculiar psychological dispositions and political ideologies. Especially in respect to violence that is committed in defiance of law, the search for fair bases of moral judgment proves elusive.

The main theme of this essay is that the law itself can provide illuminating points of reference …

Pretrial Procedure Under The Massachusetts Rules Of Criminal Procedure, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The Massachusetts Rules of Criminal Procedure became effective on July 1, 1979. While many of their provisions helpfully codify previously existing practice and case law, the Rules have in some areas effected a major transformation of criminal procedure. This article examines the changes wrought by the Rules in the pretrial arena, with emphasis on those areas that remain somewhat unfamiliar to the practitioner or untested against constitutional challenge in the courts. While the Rules appear to have done an admirable job of simplifying and rationalizing the criminal trial process, their emphasis on mutuality and reciprocity have in some cases created …

Whitebread, Criminal Procedure: An Analysis Of Constitutional Cases And Concepts, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The Case For Treason, George P. Fletcher

Faculty Scholarship

"If this be treason, make the most of it." Patrick Henry had no fear of the ultimate crime against his King. Nor did the burghers of Maryland who set ablaze the Peggy Stewart in Annapolis Harbor. One would think that for us as Americans the crime of treason would carry special significance. Our nation was born in acts of treason. The threat of prosecution made the crime foremost in the mind of the constitutional draftsmen. Indeed, treason is the only crime to find definition in our basic document.

There are other indications that the crime of treason is central to …

Equal Protection And The Prosecutor's Charging Decision: Enforcing An Ideal, Donald G. Gifford

Faculty Scholarship

No abstract provided.

Assuring Effective Assistance Of Counsel, William W. Schwarzer

Faculty Scholarship

No abstract provided.

"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.

Faculty Scholarship

In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"

"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."

"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."

"So talk to him," the prosecutor said. "Find out where he stands, and call me."

* * *

"Look," the prosecutor said, "you know I can't …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Faculty Scholarship

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …

Conjugal Violence: The Law Of Force And The Force Of Law , Maria Marcus

Faculty Scholarship

The Article concludes that neither the impartial mission of the rule of law nor the neatly tooled goal of individual justice has been served by the governmental response to conjugal violence, and suggests the elements from which a valid approach may be constructed.

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

Rebuttal: The Individual Or The Firm? Focusing The Threat Of Criminal Liability, John C. Coffee Jr.

Faculty Scholarship

I cannot disagree with much of what Mr. Crane has said in his very articulate presentation. One must be careful about trying to prove too much. I have not argued against individual criminal liability, but I do not believe we can rely on it exclusively. Let me therefore confine my reply to this question and to Mr. Crane's criticisms of my equity fine proposal.

Making The Punishment Fit The Corporation: The Problem Of Finding An Optimal Corporation Criminal Sanction, John C. Coffee Jr.

Faculty Scholarship

To be "present at the creation," in Dean Acheson's felicitous phrase, is always an honor. In addition, to be present at the commencement of what I expect will be a sustained and fruitful tradition at this law school, namely, the Governor Thompson Lectureship, is a second honor. Finally, let me express my thanks to Dean Bainbridge for a third honor: the compliment implicit in the 2 to 1 odds he has arranged today. Both Norval Morris and Mark Crane are men with distinguished careers in quite different fields of the law. If I am confident of one thing today, it …

The Insanity Defense In Juvenile Delinquency Proceedings, Maxine M. Harrington, Ann O'Regan Keary

Faculty Scholarship

The insanity defense in delinquency proceedings poses an important legal dilemma concerning the rights of children in the juvenile justice system. Indeed, beyond the purely legal concerns of the rights of an accused juvenile, the concept of criminal responsibility in the context of juvenile court proceedings raises perhaps an even more important issue of what is the best model for dealing with mentally ill juvenile offenders, both from the juvenile's viewpoint and that of society as a whole. It is our opinion that not only does the insanity defense have an appropriate role in juvenile proceedings, but that legal as …

Manifest Criminality, Criminal Intent, And The Metamorphosis Of Lloyd Weinreb, George P. Fletcher

Faculty Scholarship

My colleague has had a revelation. Professor Lloyd Weinreb's views about larceny have undergone a striking transformation in the last six months. As recently as May 1980, when he completed the preface to the third edition of his criminal law casebook, he held one set of views about The Carrier's Case and The King v. Pear. In the article published in this issue, he advances a different set of views about the two cases he regards as so important. He gives us no hint about how or why he underwent his change of heart. His transformation warrants our attention, …

Sociopsychological Processes Underlying Attitudes Toward Legal Punishment, Neil Vidmar, Dale T. Miller

Faculty Scholarship

This paper develops a theoretical framework for investigating the socialpsychological dynamics of punishment reactions to criminal offenders. Two basic types of punishment motives are delineated: behavior control and retribution. The target, or focus, of these motives may be the offender or a broader social audience. Within each of the four cells defined by this classification, we review the literature describing how punishment responses are influenced by characteristics of the rule, the offense, and the offender, as well as by the attitude and personality of the reactor. A large number of empirically testable propositions are generated.

Investigative Stops In High Crime Areas, Richard A. Gonzales

Faculty Scholarship

This article questions what constitutes reasonable suspicion of criminal activity particularly within high crime area. Some of the referenced cases:

• People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975)
• U.S. v. Magda, 409 F.Supp. 734,740 (S.D. N.Y. 1976)
• Terry v. Ohio, 392 U.S. 1 ( 1968)
• Sibron v. New York, 392 U.S. 40 ( 1968)
• U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
• U.S. v. Flores, 462 F. Supp. 702 (E.D. NS. 1978)
• U.S. v. Oates, 560 F.2d 45, 49 (2d Cir. 1977)
• U.S. v. Constantine, 567 F.2d 266 ( 4th Cir. 1977)
• People v. Bower, 24 …

Corporate Crime And Punishment: A Non-Chicago View Of The Economics Of Criminal Sanctions, John C. Coffee Jr.

Faculty Scholarship

In this article, Professor Coffee argues that fines are an inefficient means by which to deter organizational crimes. Instead, he urges a focus on the individual decision-maker and a system of competitive bids with respect to the choice of a fine as an alternative punishment.

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal …

Representation Of Women Who Defend Themselves In Response To Physical Or Sexual Assault Arguedas, Elizabeth M. Schneider, Susan B. Jordan, Cristina C. Arguedas

Faculty Scholarship

No abstract provided.

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross

Faculty Scholarship

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

Discretionary Decision-Making In The Criminal Justice System And The Black Offender: Some Alternatives, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Discretionary Justice And The Black Offender, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Beyond The Shut-Eyed Sentry: Toward A Theoretical View Of Corporate Misconduct And An Effective Legal Response, John C. Coffee Jr.

Faculty Scholarship

Like hard cases, festering scandals make bad law. As public perceptions shift so that conduct once tolerated becomes seen as illicit, political pressures develop that can result in hastily improvised responses by the legal system to fill the newly perceived vacuum. This generalization is advanced to question neither the inalienable right of the public to be scandalized, nor the need for corporate reform, but to approach a highly problematic dilemma: hurried, moralistic responses to a perceived evil often prove not only ineffective, but even counterproductive. The serious student of complex organizations may recognize this assertion as a slightly altered variant …

Pro Se Litigation -- Litigating Without Counsel: Faretta Or For Worst, Susan Herman, Ira P. Robbins

Faculty Scholarship

No abstract provided.