Criminal Law Commons^™

Recent Books

Journal of Criminal Law and Criminology

No abstract provided.

Is “Relevant Conduct” Relevant? Reconsidering The Guidelines’ Approach To Real Offense Sentencing, David N. Yellen

Faculty Publications & Other Works

No abstract provided.

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

Scholarly Works

This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

Scholarly Works

No abstract provided.

Lessons From The Past And Strategies For The Future: Using Domestic, International And Comparative Law To Overturn Sodomy Laws, Charlene Smith, James Wilets

Seattle University Law Review

This Article will first discuss the legal importance of challenging sodomy laws, even though those laws are rarely enforced. It will then discuss the importance of incorporating international and comparative law in formulating these challenges. In Section II, Professor Charlene Smith will discuss past and future strategies, focusing on the topics of equal protection, morality, and the difference (or lack thereof) between acts and status. In Section III, Professor Jim Wilets will explore incorporating international and comparative law into domestic challenges to U.S. sodomy laws. This Article will demonstrate that there is binding Supreme Court authority requiring all U.S. courts …

Asset Forfeiture And Animal Cruelty: Making One Of The Most Powerful Tools In The Law Work For The Most Powerless Members Of Society, Amy A. Breyer

Animal Law Review

Animals have historically been one of the most vulnerable segments of society to crime due both to their status as property and their inability to aduocate for themselves. While this has long worked to their disadvantage, developments in an area ofjurisprudence where criminal and property law merge now offer an unprecedented possibility. Forfeiture laws have become one of the most powerful and effective tools in the war against crime. The principles and precedents that have emerged from asset forfeiture are aptly suited to application in the animal cruelty context as well. This article discusses asset forfeiture and animal cruelty, offering …

Substance And Procedure In Capital Cases: Why Federal Habeas Courts Should Review The Merits Of Every Death Sentence, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Evidence Issues In Domestic Violence Civil Cases, Jane H. Aiken, Jane C. Murphy

Georgetown Law Faculty Publications and Other Works

This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence. First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of "non-scientific" expert testimony and may make it difficult for practitioners to use experts in their cases. In addition, particular evidentiary issues arise when victims are pursuing both criminal and civil remedies against the batterer. This …

The "Normal" Successes And Failures Of Feminism And The Criminal Law, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To write of feminist reform in the criminal law is to write of simultaneous success and failure. We have seen marked changes in the doctrines and the practice of rape law, domestic violence law, and the law of self-defense. There is not a criminal law casebook in America today, nor a state statute book, that does not tell this story. Yet for all of this success, we also live in a world in which reform seems to suffer routine failures. Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it …

Criminal And Civil Parental Liability Statutes: Would They Have Saved The 15 Who Died At Columbine?, Eric P. Ebenstein

Cardozo Journal of Equal Rights & Social Justice

The note argues that current parental liability statutes in the United States are insufficient to hold parents accountable for their children's violent acts, such as the Columbine High School massacre. It advocates for strengthening these laws, particularly by adopting a negligence standard, to incentivize parents to monitor their children's activities more effectively and prevent such tragedies.

Defining Willful Remuneration: How Bryan V. United States Affects The Scienter Requirement Of The Medicare/Medicaid Anti-Kickback Statute, Robb Degraw

Journal of Law and Health

At the forefront of the debate over the anti-kickback statute, and the topic of this Note, is the mens rea, or mental state, that is required for a violation of the law. According to the statute, an individual must "knowingly and willfully" solicit or receive, or offer to pay, remuneration in order to induce business reimbursed under any federal health care program. The interpretation of these terms by the federal courts has varied wildly, as have the underlying Supreme Court cases cited as precedent for such interpretations. However, in June of 1998, the Supreme Court defined the meaning of "willfully" …

Post-Cold War International Security Threats: Terrorism, Drugs, And Organized Crime Symposium Transcript, Michigan Journal Of International Law

Michigan Journal of International Law

Symposium transcript.

A "Last Hug" Before Execution: The Case In Favor Of Contact Visitation For Death Row Inmates In Texas, Ryan Byrd

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming

The Majority Opinion As The Social Constuction Of Reality: The Supreme Court And Prison Rules, James E. Robertson

Oklahoma Law Review

No abstract provided.

The Grand Jury And Exculpatory Evidence: Should The Prosecutor Be Required To Disclose Exculpatory Evidence To The Grand Jury, Ali Lombardo

Cleveland State Law Review

In 1992, the United States Supreme Court ruled in United States v. Williams that the federal courts do not have the supervisory power to require prosecutors to present exculpatory evidence to the grand jury. This Note argues that the Williams decision is flawed because it diminishes crucial rights of defendants and because it prevents the grand jury from fulfilling its protective function. In Section II, this Note examines the historical background and purpose of the grand jury in England and America. Section III discusses the Williams decision and the rationale behind both the majority and dissenting opinions. It also discusses …

Defending The Innocent, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Of the legal scholarship examining the representation of the innocent accused, most has to do with guilty pleas, not trial or post-trial advocacy. Most of this literature is concerned with the pressure put on innocent defendants to plead guilty in order to receive a more lenient sentence than what they would get if found guilty at trial. This problem is compounded by the inability of poor defendants to make bail. Unfortunately, there are other, equally insidious ways to pressure innocent defendants to plead guilty. When addressing the question of defending the innocent at trial or in a post-conviction challenge, most …

Does The Constitution Permit Federal Prosecution For The Arson Of A Private Residence?, Richard W. Garnett

Journal Articles

From the Issue

The federal arson statute, 18 U.S.C. § 844(i), makes it a crime to "maliciously damage[I ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce[.]" The question in Jones is whether this statute and Congress' enumerated powers permit the "federalization" of the arson of a private residence. See Joint Appendix ("J.A.") 45. More particularly, is a private residence "used" in an "activity affecting interstate commerce," within the meaning of the statute, when it, for example, receives natural gas from out-of- state …

Ensuring Able Representation For Publicly-Funded Criminal Defendants: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

While there are skilled private defense lawyers who enthusiastically represent indigent criminal defendants, too often defense lawyers whose income depends upon appointments provide deplorable representation. The problem is well known and pervasive. In addition to the blizzard of claims on appeal of ineffective representation, defenders' efforts have been savaged by judges and by fellow lawyers. These nagging problems persist: to induce private lawyers to represent their clients effectively by eliciting the defendant's story and managing their relationship in a way that at least does not displease the defendant; investigating his and the prosecution's positions; pressing the prosecution for discovery, for …

Race, Class And Criminal Prosecutions: The Supreme Court’S Role In Targeting Minorities, David Cole

Georgetown Law Faculty Publications and Other Works

In No Equal Justice, I examine the ways in which race and class disparities have an effect at each stage of the criminal justice system. Much of the disparity concerns discriminatory police practices. My argument is that the Supreme Court, and our society, have constructed a set of rules that virtually ensure there will be racially disparate prosecution of the criminal law by the police. The way the Court has done that, I suggest, is by creating pockets of discretion that police can use without having to identify any objective, individualized basis for suspicion. When the police are free to …

Punishment Goes Global: International Criminal Law, Conflict Zones, And Gender (In)Equality, Mark A. Drumbl

Scholarly Articles

The creation of the International Criminal Court (ICC) enables the international community to hold accountable those who inflict violence in the form of sexual and ethnic hatred. Drawing on case studies from Rwanda and Bosnia, the author observes the extent to which retributive criminal justice can deter offenders and foster structural societal change.

Book Review. The Death Penalty: Abolition In Europe, Ralph F. Gaebler

Articles by Maurer Faculty

No abstract provided.

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 …

Afterword And Response: What Digging Does And Does Not Do, Patricia D. White

Articles

No abstract provided.

Prosecutorial Discretion And Prosecution Guidelines: A Case Study In Controlling Federalization, Michael A. Simons

Faculty Publications

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how …

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller

Journal Articles

In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.

The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Annual Survey Of Virginia Law: Criminal Law And Procedure, Michael Edmund O'Neill

University of Richmond Law Review

The Commonwealth of Virginia is so named (as opposed to being denominated simply a "state") because the term "commonwealth" is used to indicate a government in which "supreme power is vested in the people."' That term is particularly apt, for in what better way does a government provide for the common weal of its people than by protecting them against crime, while at the same time respecting their individual rights and liberties? This is a delicate balance, one that is reflected in this survey of the most recent developments in Virginia criminal law and procedure. The legislative enactments and judicial …