Criminal Law Commons^™

Measuring Culpability By Measuring Drugs? Three Reasons To Re-Evaluate The Rockefeller Drug Laws, Susan Herman

Faculty Scholarship

No abstract provided.

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the …

The Five Worst (And Five Best) American Criminal Codes, Michael Cahill, Paul H. Robinson, Usman Mohammad

Faculty Scholarship

No abstract provided.

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …

After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt

Faculty Scholarship

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects …

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information …

Dignity And Victimhood, Kent Greenawalt

Faculty Scholarship

If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …

The Future Of The Federal Death Penalty, Rory K. Little

Faculty Scholarship

No abstract provided.

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

Religion And The Public Defender, Sadiq Reza

Faculty Scholarship

This Essay will argue that the public defender, or any other attorney appointed by the court to defend adults or juveniles charged with criminal offenses, should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional imperatives, except in the rare case of imminent death or serious bodily harm to another. This argument rests on the following four premises: (1) the public defender occupies a unique position in our legal system, and options that may be available to lawyers who serve private …

The Supreme Court, Public Opinion, And The Role Of The Academic Commentator, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Federal Death Penalty: History And Some Thoughts About The Department Of Justice's Role, Rory K. Little

Faculty Scholarship

No abstract provided.

The State Of Severity, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Speaking Of Purposes, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

An Ideological Approach To Excuse In Criminal Law, John L. Diamond

Faculty Scholarship

No abstract provided.

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their sentiments …

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.

Can The Legal System Use Experts On Meaning?, Lawrence Solan

Faculty Scholarship

No abstract provided.

Evolutionary Biology And Rape, Deborah W. Denno

Faculty Scholarship

This article queries whether an evolutionary analysis of rape may be more compelling in explaining a rape victim's fear than a defendant's sexual aggression. Such a victim-oriented approach could help legal decisionmakers assess the reasonableness of the victim's fear when determining whether sex was forced or threatened. These ideas are explored in the context of two well-known rape trials, State v. Rusk and State v. Smith. This article concludes that evolutionary biology can contribute to an understanding of rape. However, the supposed evolutionary underpinnings of male sexual aggression should not justify such behavior or render it acceptable as a criminal …

Be My Guest: The Hidden Holding Of Minnesota V. Carter, Edwin J. Butterfoss, Mary Sue B. Snyder

Faculty Scholarship

This Article first examines the Carter case in detail, including the opinions of the state courts and the briefs and oral argument in the United States Supreme Court, before turning to the Court's decision. The Article highlights the importance of Justice Kennedy's concurring opinion and explains the "hidden holding" of the case, raising the question of whether lowercourts will apply the correct rule from the case. The Article argues that the Court's denial of the defendants' claim of a reasonable expectation of privacy, combined with its failure to provide guidance as to when non-overnight visitors in homes will have the …

Regulating The Market For Snitches , Ian Weinstein

Faculty Scholarship

These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more …

When Bad Things Happen To Good Intentions: The Development And Demise Of A Task Force Examining The Drugs-Violence Interrelationship Symposium On Drug Crimes, Deborah W. Denno

Faculty Scholarship

Between 1994-1996, I was one of twenty-eight members of a Drugs-Violence Task Force, created to report to the United States Sentencing Commission specific findings, conclusions, and recommendations concerning the interrelationship (if any) between drugs and violence. Much of the controversy concerning how to approach the drugs-violence problem reflects two conflicting and long-held views of drugs and crime: the criminal justice view, which emphasizes detecting and punishing drug offenders, and the public health view, which advocates treating the drug addiction that leads some individuals to commit crime. Traditionally, the criminal justice view is associated with a “tough on crime” attitude that …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Faculty Scholarship

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …