Criminal Law Commons^™

An Honest Services Debate, Sara Sun Beale

Faculty Scholarship

This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Humonetarianism: The New Correctional Discourse Of Scarcity, Hadar Aviram

Faculty Scholarship

No abstract provided.

Defining The Problem, Hadar Aviram

Faculty Scholarship

No abstract provided.

Dangerousness, Risk, And Release, Hadar Aviram, Valerie Kraml, Nicole Schmidt

Faculty Scholarship

No abstract provided.

It's Not My Problem? Wrong: Prosecutors Have An Important Ethical Role To Play, Rory K. Little

Faculty Scholarship

No abstract provided.

Sentencing Reform In California, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Changing The Topography Of Sentencing, Kate Bloch

Faculty Scholarship

No abstract provided.

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

Faculty Scholarship

No abstract provided.

The Unintentional Rapist, Bennett Capers

Faculty Scholarship

No abstract provided.

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones

Faculty Scholarship

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …

Over-Kill: The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Scholarship

No abstract provided.

The Durability Of Prison Populations, John F. Pfaff

Faculty Scholarship

No abstract provided.

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Neuroscience, Cognitive Psychology, And The Criminal Justice System, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Organizational Liability And The Tension Between Corporate And Criminal Law, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Decriminalizing Border Crossings, Victor C. Romero

Faculty Scholarship

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Faculty Scholarship

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Preserving The Corporate Attorney-Client Privilege, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that, while legislation such as the Attorney-Client Privilege Protection Act ("ACPPA") is necessary to preserve that corporate attorney-client privilege, any such legislation must include judicial oversight to deter prosecutorial misconduct effectively. Part II examines the costs and benefits of granting corporations the attorney-client privilege in criminal investigations. It concludes that the benefits of the privilege fat outweigh the costs and that the privilege must be safeguarded from unnecessary infringement. Part III traces the evolution of the DOJ's waiver policies that have threatened the corporate attorney-client privilege. It also examines the costs and benefits of the waiver policy …

Reconceptualizing Restorative Justice, Kate Bloch

Faculty Scholarship

No abstract provided.

Retributivism Refined - Or Run Amok?, Kenneth Simons

Faculty Scholarship

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does ordoes not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced …

Tax Fraud In The Sales Tax: Zappers — What Are They? How Can Puerto Rico Block Them?, Richard Thompson Ainsworth

Faculty Scholarship

The Sales and Use Tax is an essential part of Puerto Rico’s revenue profile. Effective only recently (November 15, 2006) the Impuesto a las Ventas y Uso (IVU) was expected to raise between $2.3 and $1.05 billion annually, and has already become the Commonwealth’s fourth largest revenue source. Actual revenue results for 2007-2008 came in at $1.1 billion, which admittedly is closer to the low end than the high end of what is possible, but now that the tax is in place the next pressing question is how can its performance be improved?

This paper generally proposes that Puerto Rico …

Liberty Lost: The Moral Case For Marijuana Law Reform, Eva Nilsen

Faculty Scholarship

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll

Faculty Scholarship

This article makes valuable new contributions to the burgeoning scholarly discourse on Apprendi v. New Jersey-a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile …