Criminal Law Commons^™

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.

How Many Lives Has Victor Streib Saved? A Tribute, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Frye And Lafler: No Big Deal, Gerard E. Lynch

Faculty Scholarship

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz

Faculty Scholarship

These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions – between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Faculty Scholarship

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

Blind Justice, Bennett Capers

Faculty Scholarship

No abstract provided.

Gender & Sexuality In The Aba Standards On The Treatment Of Prisoners, Margaret Colgate Love, Giovanna Shay

Faculty Scholarship

Over the past three decades, commentators, advocates, and corrections experts have focused increasingly on issues of gender and sexuality in prison. This is due in part to the growing number of women in a generally burgeoning American prison population. It is also attributable to efforts to end custodial sexual abuse and prison sexual violence, which have focused attention on issues relating to women and LGBT prisoners. Also, in part, this heightened attention reflects the influence of growing free-world social movements emphasizing the "intersectionality" of multiple forms of subordination and seeking to secure fair treatment of gay and transgender people.

This …

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.

Defining Inchoate Crime: An Incomplete Attempt, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Politics And Punishment: Reactions To Markel's Political Retributivism, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Wrongful Convictions Do Lower Deterrence, Nuno Garoupa, Matteo Rizzolli

Faculty Scholarship

The conventional result of the theory of the public enforcement of law is that wrongful convictions of innocents are detrimental to deterrence. This proposition has been challenged recently. In some cases, wrongful convictions do not jeopardize deterrence, because they influence equally the innocent and the guilty. Therefore deterrence does not change. We show that, in general, wrongful convictions do lower deterrence. We prove that wrongful convictions do not jeopardize deterrence only in very limited circumstances or under unlikely assumptions.

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Faculty Scholarship

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact …

Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye

Faculty Scholarship

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …

Chimeric Criminals, David H. Kaye

Faculty Scholarship

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains …

Response: One Market We Do Not Need, Giovanna Shay

Faculty Scholarship

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive …

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …

Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks

Faculty Scholarship

No abstract provided.

In-House Counsel Beware!, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …

Enforcing Integrity, Katrice Bridges Copeland

Faculty Scholarship

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those …

Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons

Faculty Scholarship

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?

Queer (In)Justice: Mapping New Gay (Scholarly) Agendas, Giovanna Shay, J. Kelly Strader

Faculty Scholarship

The 2011 book Queer (In)Justice surveys involvement of sexual minorities in all phases of the what the authors term the "criminal legal system." It examines the treatment of LGBTQ people as criminal defendants, victims, and prisoners. Queer (In)Justice moves beyond the typical focus of gay rights activists and scholars in the criminal law area to address the everyday treatment of LGBTQ people by police, prosecutors, courts, and corrections authorities. Relying heavily on prison abolitionist movement thinking, the book calls into question reliance on criminal punishment as a means of combating violence against LGBTQ people. Although largely anecdotal, and sometimes over-heated …

Inside-Out As Law School Pedagogy, Giovanna Shay

Faculty Scholarship

In the fall of 2010, and again in spring 2012, the Author taught a course entitled Gender & Criminal Law inside the Western Massachusetts Correctional Alcohol Center in Springfield. Participants in the course included roughly equal numbers of law students from the Author's home academic institution, Western New England University School of Law, and residents of the facility. For fourteen weeks, the class met weekly at the institution to discuss issues including domestic violence law reform, the role of family ties in sentencing, and gender issues in prisoner reentry. The Author taught this course in a modified form of the …

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga

Faculty Scholarship

We compare crime and incarceration rates over time for the United States, Canada, and England and Wales, as well as for a small selection of comparison countries. Shifts in U.S. punishment policy led to a five-fold increase in the incarceration rate, while nearly every other country experienced only minor increases in incarceration. The large shifts in U.S. punishment policy do not seem to have caused commensurately large improvements in public safety.

The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring

Faculty Scholarship

The ongoing debate about capital punishment in the United States juggles several contentious questions. Innocence, cost, racial fairness, proportionality, retributivist calculus, and deterrence concerns thread a literature whose richness testifies to the endurance of capital punishment in American legal and political culture. For proponents of capital punishment, the connection between the moral and utilitarian or consequentialist positions trumps all other concerns: They suggest that if the death penalty can prevent – through the incapacitation of the offender and general deterrence of would-be killers – the loss of even one innocent life from murder, then execution is a morally justified or …