Criminal Law Commons^™

Punishment As Protection, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

The Jury As Democracy, Jenny E. Carroll

Faculty Scholarship

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Faculty Scholarship

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …

Phishing And Vat Fraud In Co2 Permits: The Digital Invoice Customs Exchange Solution, Richard Thompson Ainsworth

Faculty Scholarship

In accordance with Directive 2003/87/EC of October 13, 2003, trade in greenhouse gas emissions commenced in the European Union (EU) on January 1, 2005. The EU-Emissions Trading System (EU-ETS) was born.

The EU has a Value Added Tax (VAT). VAT is a transaction-based levy on all trade in goods and services. Each Member State has a VAT as a condition of membership. Until January 3, 2017 transactions in CO2 permits are taxed as services. After this date they are exempt as financial instruments.

This change in VAT treatment of CO2 permits is directly attributable to rampant fraud in the market. …

Hands Up At Home: Militarized Masculinity And Police Officers Who Commit Intimate Partner Abuse, Leigh S. Goodmark

Faculty Scholarship

The deaths of Michael Brown and Eric Garner and the almost daily news stories about abusive and violent police conduct are currently prompting questions about the appropriate use of force by police officers. Moreover, the history of police brutality directed towards women is well documented. Most of that literature, however, captures the violence that police do in their public capacity, as officers of the state. This article examines the violence and abuse perpetrated by police in their private lives, against their intimate partners, although the public and private overlap significantly to the extent that the power and training provided to …

Victim Or Thug? Examining The Relevance Of Stories In Cases Involving Shootings Of Unarmed Black Males, Sherri Keene

Faculty Scholarship

No abstract provided.

(Still) "Unsafe At Any Speed": Why Not Jail For Auto Executives?, Rena I. Steinzor

Faculty Scholarship

Americans can be forgiven for wondering what has gone so drastically wrong with the companies that sell automobiles. In 2014, 64 million, a number equivalent to one in five of the cars on the road, was recalled. Safety defects such as the lack of torque in ignition switches installed in GM compact cars like the Cobalt put motorists in the terrifying position of coping with a stalled engine and loss of power brakes while traveling at high speeds. GM had the audacity to classify this condition was not a safety defect, but instead was merely “inconvenient” for its customers. It …

"And If Your Friends Jumped Off A Bridge, Would You Do It Too?": How Developmental Neuroscience Can Inform Legal Regimes Governing Adolescents, Michael N. Tennison, Amanda C. Pustilnik

Faculty Scholarship

Legal models of adolescent autonomy and responsibility in various domains of law span a spectrum from categorical prohibitions of certain behaviors to recognitions of total adolescent autonomy. The piecemeal approach to the limited decision-making capacity of adolescents lacks an empirical foundation in the differences between adolescent and adult decision-making, leading to counterintuitive and inconsistent legal outcomes. The law limits adolescent autonomy with respect to some decisions that adolescents are perfectly competent to make, and in other areas, the law attributes adult responsibility and imposes adult punishments on adolescents for making decisions that implicate their unique volitional vulnerabilities. As developmental neuroscientists …

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Culpability And Modern Crime, Samuel W. Buell

Faculty Scholarship

Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …

The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding

Faculty Scholarship

Policymakers have often been explicit in expanding statutory rape laws to reduce teenage pregnancies and live births by teenage mothers, often with the goal of reducing associated welfare outlays. In this paper, we explore whether expansions in such laws are indeed associated with reductions in teen birth rates. In order to codify statutory-rape-law expansions, we use a national micro-level sample of sexual encounters to simulate the degree to which such encounters generally implicate the relevant laws. By codifying statutory-rape laws in terms of their potential reach into sexual encounters, as opposed to using crude binary treatment variables, this simulation approach …

Timing Brady, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Can Criminal Law Do Without Moralism?, Review Of Crime And Punishment: A Concise Moral Critique By Hyman Gross, Youngjae Lee

Faculty Scholarship

This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012).

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Scholarship

No abstract provided.

Wrongful Convictions And Upstream Reform In The Criminal Justice System, Kate Kruse

Faculty Scholarship

This Article explores the viability of upstream criminal justice reforms within the context of an adversary and procedural system of criminal justice, focusing on reforms in eyewitness identification procedures. Mistaken eyewitness identification evidence is often cited as the leading cause of wrongful convictions in the United States. Eyewitness identification reforms have also been the most developed upstream efforts to grow out of the innocence movement. The success and limitation of upstream reform in eyewitness identification shed light on the efficacy of upstream criminal justice system reform more generally, as well as in areas that are less developed, such as the …

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of Justice,” interprets …

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …

Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports

Faculty Scholarship

The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Faculty Scholarship

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill C. Engle

Faculty Scholarship

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Faculty Scholarship

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Faculty Scholarship

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …