Criminal Law Commons^™

Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse

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This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

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No abstract provided.

The Newly Found "Compassion" For Sexually Violent Predators: Civil Commitment And The Right To Treatment In The Wake Of Kansas V. Hendricks, Elizabeth Weeks

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In light of heart-wrenching stories of sexual abuse and public demands for safety, the Kansas v. Hendricks case presented the Supreme Court with compelling facts on which to uphold the Kansas commitment strategy. After all, the statute prevented the release of a man whose history of sex crimes, incarceration, and institutionalization spanned nearly two decades, and who admitted he still had sexual desires for children but could not control his urges. Faced with that evidence, the Court would have been hard-pressed to strike down the Kansas statute by finding that such a predator received inadequate treatment for his disorder, or …

"Possessing With Intent To Distribute" Under The Schoolyard Statute, Sonja R. West

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This Comment proposes that courts should explicitly rather than implicitly distinguish the different types of defendants accused of possession with intent to distribute controlled substances within a school zone. Part I reviews the current state of the law on this issue and presents the legislative history and textual arguments involved in the debate over the mens rea requirement. Part II examines the factual circumstances at issue in the relevant cases and concludes that these factual circumstances, rather than competing statutory interpretations, lead to *1401 the different results. Finally, Part III emphasizes the need to recognize these implicit categories of offenses …

Representing Black Male Innocence, Joan W. Howarth

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This Article is a case study of a California capital case. Drawing on cultural studies, the first part develops the social construction of Black male gang member, especially as that identity is understood within white imaginations. The powerful and frightening idea of a Black man who is a gang member, even gang leader, captured the imagination and moral passion of the decisionmakers in this case, recasting and reframing the evidence in furtherance of this idea. In fundamental ways, this idea or imposed identity is fundamentally inconsistent with any American concept of innocence.

The second part uses the case to investigate …

Without Narrative: Child Sexual Abuse, Lynne Henderson

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No abstract provided.

Jurisdiction, Definition Of Crimes, And Triggering Mechanisms, Christopher L. Blakesley

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The opportunity to create an international court that provides fair, equitable, and efficient justice is rare and important. It requires expertise in comparative and international law. Problems are serious, however. Failure to address the formidable problems could cause the Court to run a risk of failure that could be disastrous for international law, for the victims of the horrors that have occurred and that will occur, and for the world. Failure could come in at least two forms: (1) the Court could merely be a conduit for retribution after a pro-forma kangaroo court or (2) it will not have sufficient …

Who Executes The Executioner? Impeachment, Indictment And Other Alternatives To Assassination, Jay S. Bybee

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This article addresses whether the Constitution protects a sitting President from indictment. The text of the Constitution is not clear on this question as it might be, but it is clear enough. No court has ever addressed the question of the President’s amenability to criminal charges, although the courts have considered the related question of whether federal judges can be subjected to criminal charges. Those courts have answered that judges and other officials are subject to criminal prosecution while in office. Congress has implicitly approved this conclusion in its passage of the Ethics in Government Act with its provision for …

The Standard Of Review For The Voluntariness Of A Confession On Direct Appeal In Federal Court, Peter B. Rutledge

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Section I of this Comment reviews the Supreme Court's jurisprudence on confessions, provides a close reading of Miller v. Finton, 474 U.S. 104 (1985), and reviews the division among the federal circuits over the standard of review for voluntariness determinations on direct appeal. Section II analyzes the literature on standards of review and focuses on two vexing problems in this field-the application of law to fact (hereinafter "mixed questions") and the constitutional fact doctrine. These two issues frame the analysis of voluntariness determinations. Section III analyzes these determinations and defends the application of de novo review in cases on …

Whose Justice? Which Victims?, Lynne Henderson

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No abstract provided.

Terrorism And Hostages In International Law: A Commentary On The Hostages Convention 1979, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979” by Joseph J. Lambert.

Constitutional Concerns About Capital Punishment: The Death Penalty Statute In New York State, Richard Klein

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No abstract provided.

The Georgia Death Penalty Habeas Corpus Reform Act Of 1995, Donald E. Wilkes Jr.

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On April 10, 1995, Gov. Zell Miller signed into law Georgia's Death Penalty Habeas Corpus Reform Act of 1995. The Act is premised upon the following findings and determinations of the General Assembly: that through direct appeal, sentence review, and habeas corpus the state now provides persons sentenced to death "adequate opportunities" to assert their constitutional rights; that habeas corpus proceedings should not be used by persons sentenced to death "solely as a delaying tactic under the guise of asserting rights;" and that "strict compliance" with habeas corpus procedures "will prevent the waste of limited resources and will eliminate unnecessary …

Section 1983 Litigation, Martin A. Schwartz

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No abstract provided.

An Examination Of The Proposed Crime Of Intervention In The Draft Code Of Crimes Against The Peace And Security Of Mankind, John Linarelli

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No abstract provided.

Democratic Responses To International Terrorism, Christopher L. Blakesley

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This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Deciding To Kill: Revealing The Gender In The Task Handed To Capital Jurors, Joan W. Howarth

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Day after day, across this country, ordinary people are summoned to court for a selection process that ultimately leaves them in a room deciding, with other jurors, whether a criminal defendant should be killed. The task handed to these jurors is an awesome, personal, moral decision, encased within the complex legal standards and procedures that constitute modern capital jurisprudence. The doctrine that created and sustains this moment of conscience reflects an ongoing struggle of rule against uncertainty, reason against emotion, justice against mercy, and thus, at one level, male against female. Capital jurisprudence -- the law for deciding whether to …

Prosecuting And Defending Violations Of Genocide And Humanitarian Law: The International Tribunal For The Former Yugoslavia, Christopher L. Blakesley

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A symposium discussing the international war crimes tribunal for the former Yugoslavia, established by the United Nations Security Council’s . Christopher L. Blakesley discussed the procedural aspects of the War Crimes Tribunal.

Obstacles To The Creation Of A Permanent War Crimes Tribunal, Christopher L. Blakesley

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Individual liability for war crimes is difficult to enforce and is unlikely to be accepted uniformly by states.

Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal …

Rodney King And The Decriminalization Of Police Brutality In America: Direct And Judicial Access To The Grand Jury As Remedies For Victims Of Police Brutality When The Prosecutor Declines To Prosecute, Peter L. Davis

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This Article begins with the premise that, despite political rhetoric and occasional prosecutions to the contrary, police brutality has been effectively decriminalized in this country. The Article adopts the Rodney King case as the paradigm for examining this phenomenon. Scrutinizing the culture and semantics of police brutality, the author concludes that a double standard of criminality exists in the United States, under which different rules apply to a police than to everyone else. This double standard is socially dysfunctional. Particularly among minorities, it leads to a sense of cynicism about our legal system that can result in civil disorder when …

Money Laundering: Business Beware, Larry D. Thompson

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This Article examines the constitutionality of the Anti-Money Laundering Statutes. Specifically, the Article stresses that the Anti-Money Laundering Statutes, like RICO, are unconstitutionally vague and overbroad when applied to routine business transactions. Accordingly, Part II summarizes the void for vagueness and overbreadth doctrines. Part III sets forth the elements of the Anti-Money Laundering Statutes and then examines these elements under both doctrines. Part IV discusses how the lack of guidelines and, in some cases, the lack of prosecutorial discretion exacerbates the problems of vagueness and overbreadth. The Article concludes with the suggestion that guidelines similar to those adopted for RICO …

The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein

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No abstract provided.

Are Spread Out Cities Really Safer? (Or, Is Atlanta Safer Than New York?), Michael Lewyn

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No abstract provided.

Getting To Know: Honoring Women In Law And In Fact, Lynne Henderson

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No abstract provided.

Voting Behavior On The Texas Court Of Criminal Appeals, 1991-92, Keith A. Rowley, Michael D. Weiss

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Between early 1991, when Judge Fortunato Benavides was appointed to replace Judge Marvin O. Teague, and July 1, 1992, the Texas Court of Criminal Appeals decided 251 cases where the ultimate question at stake was whether or not an accused individual would receive punishment for his or her alleged wrongdoing. While the sitting judges unanimously decided roughly one-half of these cases, 133 cases resulted in one or more dissenting votes. Furthermore, a margin of two votes or less decided thirty-five cases.

The purpose of this Article is to analyze and, if possible, explain the voting behavior of the members of …

Review Essay: Feminism, Lawyering, And Death Row, Joan W. Howarth

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Representing men on death row is confounding, but not without reward. This lawyering work has taught me at least two lessons, the subjects of this essay. First, capital punishment--our attempt to use legal procedures to kill people fairly--is a feminist issue, or should be. Second, death row representation is too big a job for lawyers; we need to recruit poets. To develop these ideas, and perhaps to convince you without requiring you to undertake the same path to these conclusions, I am appropriating novelist Beverly Lowry's stunning new book, Crossed Over: A Murder, A Memoir. Crossed Over is the story …

International Judicial Assistance, Christopher L. Blakesley

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The general or even specialized practitioner faces serious difficulties as the world shrinks and the practice of law frequently transcends international boundaries. In the civil and commercial arena, issues of discovery and service of documents abroad, others relating to judicial assistance from foreign courts, available to American courts or individual litigants, and assistance available from American courts for foreign governments and individual litigants, can be mindboggling. In an age where transnational litigation (that is, domestic litigation that touches upon one or more foreign jurisdictions) is rapidly increasing, counsel could be guilty of malpractice if counsel takes action abroad that proves …

The Need For An International Criminal Court In The New International World Order, Christopher L. Blakesley

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Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency …

State Support Of International Terrorism: Legal, Political And Economic Dimensions, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “State Support of International Terrorism: Legal, Political, and Economic Dimensions” by John F. Murphy.

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

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No abstract provided.