Criminal Law Commons^™

Alternative Visions For The Federal Criminal Justice And Corrections System: Is True Change Possible?, Nora V. Demleitner

Scholarly Articles

None available.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Stepping Beyond Nuremberg’S Halo: The Legacy Of The Supreme National Tribunal Of Poland, Mark A. Drumbl

Scholarly Articles

The Supreme National Tribunal of Poland (Najwyzszy Trybunal Narodowy (Tribunal)) operated from 1946 to 1948. It implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This article unpacks two of the Tribunal’s trials, that of Rudolph Hoess (Kommandant of Auschwitz (Oswiecim) and Amon Goeth (commander of the Krakow-Plaszow labour camp). Following an introduction, the article proceeds in four sections. Section 2 sets out the Tribunal’s provenance and background, offering a flavour of the politics and pressures that contoured (and co-opted) its activities so as to recover its place within the imagined spaces of international criminal accountability. …

Gideon’S Army And The Central Theme Of Poverty, Cara H. Drinan

Scholarly Articles

Gideon’s Army, a powerful documentary film that follows the work of three public defenders in the South, provides a window into the well documented dysfunction of most public defender offices across the country. While following the life and work of these public defenders—Travis Williams, Brandy Alexander, and June Hardwick—the viewer sees what the academic literature has documented for decades: public defenders carry caseloads that are multiples of professional guidelines; compensation for public defenders is so paltry that many are barely making ends meet; the offices in which they work are resource-starved; guilty pleas are the default; and the public …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Scholarly Articles

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

Juvenile Sentencing Post-Miller: Preventive And Corrective Measures, Cara H. Drinan

Scholarly Articles

At the end of the twentieth century, the United States was an international outlier in the severity of its juvenile sentencing practices despite having invented the juvenile court model one century earlier. Today, juvenile sentencing reform is underway, particularly in the wake of recent Supreme Court decisions that have cabined the states’ capacity to impose extreme sentences on juveniles. In this Article, I propose two additional reform measures that would help to rationalize the sentences imposed on children in the American criminal justice system—one on the front end of the system and one on the back end. In particular, on …

The Third Dimension Of Victimization, Mary Graw Leary

Scholarly Articles

This article advocates for consideration of a restructuring of criminal laws at a basic level. It argues for the recognition of a third dimension of victimization. States must review criminal codes and restructure them to recognize the many new forms of victimization that are achieved digitally. Because of the uniquely pernicious harms of digital victimization, current criminal codes are insufficient. They fail to capture both the social value being protected and the harms accomplished through these digital victimizations. This article argues that one’s digital presence can, in fact, be an extension of oneself. As such, one’s digital self can be …

Proceedings Of The Ninth International Humanitarian Law Dialogs, International Criminal Law: Year In Review 2014–2015, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl's remarks on September 1, 2015, at the Ninth International Humanitarian Law Dialogs held in Chautauqua, New York.

What I do not want to do is review and repeat what has already been said about the international arena. I thought what I would do is boil it down to a couple observations that I have about the activities at the international institutions over the past year, and discuss four elements that have emerged.

One is transition. What I mean by this is that the work of a number of the international institutions is winding …

Sentencing Inequality Versus Sentencing Injustice, Melanie D. Wilson

Scholarly Articles

Women lag behind men in pay for equal work and in positions of prestigious employment, such as chief executive officers at Fortune 500 companies and presidents of colleges and universities. Women also suffer conscious and subconscious negative bias from both men and women in positions to evaluate an applicant's capabilities and potential, making it less likely that an employer or mentor will choose a woman instead of a man. In contrast to these and many other contexts, our federal criminal justice system regularly favors women over men. Empirical studies show that this lenient treatment begins with prosecutors and law enforcement …

Anti-Justice, Melanie D. Wilson

Scholarly Articles

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

Fighting Fire With Fire: Technology In Child Sex Trafficking, Mary Graw Leary

Scholarly Articles

The scourge of child sex trafficking is as complex as it is alarming. It is speculated that the “Triple A Engine” effect of the Internet (Affordability, Access, and Anonymity) plays a role in the sex trafficking of children. For example, much media coverage and political action has recently taken place regarding online ad sites such as backpage.com facilitating child sex trafficking. However, as with many aspects of child sex trafficking, obtaining actual measurements and hard data is challenging due to the nature of the crime, the lack of a uniform description, and inherent under-reporting. That is why Microsoft Corporation awarded …

The Effects Of The Lubanga Case On Understanding And Preventing Child Soldiering, Mark A. Drumbl

Scholarly Articles

On March 14, 2012, a trial chamber of the International Criminal Court (ICC) convicted Thomas Lubanga Dyilo, a rebel leader from the Democratic Republic of the Congo, for child-soldier-related crimes. Some months later, Lubanga was sentenced to a prison term of fourteen years. On August 7, 2012, an ICC trial chamber issued its decision regarding the principles and procedures to be applied to reparations in the Lubanga case. This Article unpacks the relationships between the Lubanga proceedings and how the international community conceptualizes, and strives to prevent, child soldiering. This Article contends that the Lubanga proceedings reinforce, and incubate, a …

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Rage Against The Machine: A Reply To Professors Bierschbach And Bibas, Erik Luna

Scholarly Articles

The article presents a response to the article by Professor Albert Alschuler on the administrative rulemaking in criminal law enforcement and guiding the power which was wielded by criminal justice officials. It mentions that the increase in the rate of the punishment given to the convicts is less effective in reducing the crime and enhancing public safety. It informs that bureaucratization can be considered as the means to improve the criminal process in the U.S.

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Scholarly Articles

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where …

Florida V. Jardines: The Wolf At The Castle Door, Timothy C. Macdonnell

Scholarly Articles

The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court's contraband exception and some of the Court's precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court's holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the …

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Process For The Dispossessed: Procedural Rights From Magna Carta To Modern International Law, Mark A. Drumbl

Scholarly Articles

Due process matters greatly to distinguished philosopher Larry May, who advocates for a vigourous assertion of procedural rights as constituting an international rule of law. He undertakes this ambitious, a la fois aspirational, task in Global Justice and Due Process.

Proceedings Of The Seventh International Humanitarian Law Dialogs, Recent Developments In International Criminal Law: 2012–2013, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl’s keynote address on August 27, 2013 at the Seventh International Humanitarian Law Dialogs held in Chautauqua, New York.

Prosecutorial Decriminalization, Erik Luna

Scholarly Articles

The article discusses the legal concept of prosecutorial decriminalization in the U.S. as of July 2012, focusing on an analysis of the use of criminal laws to enforce the public standards of morality in America. Penal codes and criminal sanctions are addressed, along with several reform measures aimed at restructuring a criminal law system in the U.S. which has reportedly been overburdened by overcriminalization. The use of the American judiciary system as a check on overcriminalization is mentioned.

Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson

Scholarly Articles

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

Judicial Challenges To Mandatory Minimum Sentences: A New Frontier In Debate Over Child Pornography Sentencing?, Mary Graw Leary

Scholarly Articles

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit …

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Scholarly Articles

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another? (A Roundtable Discussion Of The Aba's Standards For Criminal Litigation), James E. Moliterno

Scholarly Articles

None available.

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

Scholarly Articles

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

Accountability For System Criminality, Mark A. Drumbl

Scholarly Articles

Not available.

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson

Scholarly Articles

Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

Mandatory Minimalism, Erik Luna, Paul G. Cassell

Scholarly Articles

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps …