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Articles 151 - 180 of 294
Full-Text Articles in Criminal Law
Prosecution Of Process Crimes: Thoughts And Trends, Allison Caffarone, Karen Patton Seymour, Stephen R. Peikin
Prosecution Of Process Crimes: Thoughts And Trends, Allison Caffarone, Karen Patton Seymour, Stephen R. Peikin
Scholarly Works
The United States Department of Justice has come under attack in recent years because of its increased attention to, and prosecution of, crimes committed during the course of its investigations — obstruction of justice, perjury, and making false statements. These crimes have been labeled “cover-up” or “process crimes,” and the charging prosecutors have been criticized as bringing such charges only against high-profile defendants as to whom there is insufficient evidence to charge the “more serious” underlying offenses that prompted the initial investigation. Some critics have gone so far as to label these prosecutions “vindictive.” Much of this criticism is misplaced. …
An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein
An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein
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This article will analyze the most significant changes in the manner in which individuals who are charged with the crime of rape are prosecuted for that offense. In the last thirty-five years, there has been a steady erosion of the due process rights of those accused of rape.
A Tangled Web Of Justice: American Indian And Alaska Native Youth In Federal, State, And Tribal Justice Systems, Addie C. Rolnick, Neelum Arya
A Tangled Web Of Justice: American Indian And Alaska Native Youth In Federal, State, And Tribal Justice Systems, Addie C. Rolnick, Neelum Arya
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This policy brief is intended to serve as a resource for tribes, juvenile justice professionals, and other stakeholders interested in improving outcomes for Native youth by presenting the current state of knowledge on Native youth and their involvement in justice systems across the country.
In Re Gault And The Promise Of Systemic Reform, Katherine R. Kruse
In Re Gault And The Promise Of Systemic Reform, Katherine R. Kruse
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The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …
The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii
The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii
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This Article offers a critique of Nevada's Harnisch cases and calls for the Nevada Supreme Court to reconsider its ruling. The authors begin by examining the historical development of the automobile exception, beginning with Carroll v. United States. There the Supreme Court reasoned that both probable cause and the exigency of the mobility of automobiles justified a search without a warrant. But almost seventy-five years later, in Maryland v. Dyson, the Court clarified its conclusion that the automobile exception has no separate exigency requirement. In turn, the authors will then examine Nevada's application of the automobile exception prior to 1998's …
An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein
Scholarly Works
No abstract provided.
The Price Of Misdemeanor Representation, Erica J. Hashimoto
The Price Of Misdemeanor Representation, Erica J. Hashimoto
Scholarly Works
Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Scholarly Works
No abstract provided.
Defending The Right Of Self-Representation: An Empirical Look At The Pro Se Felony Defendant, Erica J. Hashimoto
Defending The Right Of Self-Representation: An Empirical Look At The Pro Se Felony Defendant, Erica J. Hashimoto
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Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right of self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon …
Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis
Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis
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Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …
Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook
Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook
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This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …
International Law And Rehnquist-Era Reversals, Diane Marie Amann
International Law And Rehnquist-Era Reversals, Diane Marie Amann
Scholarly Works
In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …
John Paul Stevens, Human Rights Judge, Diane Marie Amann
John Paul Stevens, Human Rights Judge, Diane Marie Amann
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This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …
Habeas Corpus And Baseball, Donald E. Wilkes Jr.
Habeas Corpus And Baseball, Donald E. Wilkes Jr.
Scholarly Works
In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play in Chemung County, …
The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein
The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein
Scholarly Works
No abstract provided.
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Scholarly Works
No abstract provided.
Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens
Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens
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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …
Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein
Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein
Scholarly Works
No abstract provided.
The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto
The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto
Scholarly Works
The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …
Miranda And Reasonableness, Peter B. Rutledge
Miranda And Reasonableness, Peter B. Rutledge
Scholarly Works
Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …
Plea Bargaining At The Hague, Julian A. Cook
Plea Bargaining At The Hague, Julian A. Cook
Scholarly Works
Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …
Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon
Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon
Scholarly Works
This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …
Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser
Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser
Scholarly Works
Nevada Supreme Court Justice Miriam Shearing retired at the end of her second term on January 4, 2005. Over the nearly thirty years of her very public life on the bench, many have written of her accomplishments as the firs woman to enter the brotherhood of the Nevada judiciary. With Justice Sharing’s retirement, the time is ripe for an examination of her judicial decisions during the twelve years she served on the Nevada Supreme Court. The analysis here provides one perspective on her body of work. It begins, as it must, with a glimpse into the person behind the work.
Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett
Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett
Scholarly Works
The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.
Apprendi, Blakely And Federalism, Peter B. Rutledge
Apprendi, Blakely And Federalism, Peter B. Rutledge
Scholarly Works
The Clark Y. Gunderson Lecture is a memorial to a man who devoted his life to legal education and spent thirty years teaching at the Law School. It is supported by a trust fund in the University of South Dakota Law School Foundation established principally by Colonel Gunderson's family. Professor Rutledge delivered the 2004 Gunderson Lecture at the Law Review's Symposium on Sentencing and Punishment, which took place at the Law School on November 5, 2004. What follows is an adapted version of Professor Rutledge's lecture.
Fifteen Famous Supreme Court Cases From Georgia, Dan T. Coenen
Fifteen Famous Supreme Court Cases From Georgia, Dan T. Coenen
Scholarly Works
John Inscoe, UGA professor of history and editor of the New Georgia Encyclopedia, invited Hosch Professor Dan T. Coenen to contribute a series of essays on the most significant U.S. Supreme Court cases that originated in the state of Georgia. This article, which proposes an unranked top 15 list, is built on this work.
Due Process Denied: Judicial Coercion In The Plea Bargaining Process, Richard Klein
Due Process Denied: Judicial Coercion In The Plea Bargaining Process, Richard Klein
Scholarly Works
No abstract provided.
Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli
Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli
Scholarly Works
Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …
Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley
Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley
Scholarly Works
To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …
Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse
Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse
Scholarly Works
Lawyers should be more like social workers. That is the message of Law as Social Work, the provocative essay by Jane Aiken and Stephen Wizner (Aiken & Wizner) in the Washington University Journal of Law & Policy volume, which preceded the conference on Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship, hosted by Washington University School of Law in March 2003. Almost as if in reply, Abbe Smith's contribution to the same pre-conference volume reasserts the importance of lawyers as zealous and partisan advocates, using the realities of the criminal defense context to argue for the value of the lawyer's …