Criminal Law Commons^™

An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen

ExpressO

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining "excuse" against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -- and, typically, legally blameless, too -- for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person …

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

San Diego Law Review

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Unchecked And Imbalanced? A Critical Reading Of The U.S. Constitution, Madeleine Severin

Cardozo Law Review

No abstract provided.

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

A V. B, Aharon Barak, Ayala Procaccia, Eliezer Rivlin

Translated Opinions

Facts: The respondent had a long-term relation with the appellant, while both parties were married to others. During this relationship, the respondent encouraged the appellant to obtain a divorce from her husband, and promised to divorce his wife and marry the appellant. The appellant did obtain a divorce from her husband, but the respondent did not divorce his wife.

The appellant sued for damages for breach of a promise of marriage. The respondent argued, inter alia, that a promise of marriage given by a married man is void for being contrary to public policy. The Magistrates Court awarded a lump-sum …

The Legacy Of The Prompt Complaint Requirement, Corroboration Requirement, And Cautionary Instructions On Campus Sexual Assault, Michelle J. Anderson

Working Paper Series

No abstract provided.

Summary Of Allred V. State, 120 Nev. Adv. Op. 47, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

No abstract provided.

Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo

Faculty Publications

In the law school classroom, the Socratic method of legal analysis removes a dispute at issue in a given case from its sociocultural context and takes the cultural backgrounds of the parties into account only when they serve the legal argument. The language of the law commands law students to siphon off the emotional and cultural content because of the enduring belief that the law is neutral and impartial. Accordingly, cultural conflicts are deemed irrelevant to legal analysis because laws are unbiased and culture-blind. This detached outlook has been termed perpectivelessness to denote a neutral, odorless, colorless non-perspective.

This essay …

Picture Perfect? X-Ray Searches At The United States Border Require Guidance, Lauren Bercuson

University of Miami Inter-American Law Review

No abstract provided.

Law, Terrorism, And Social Movements: The Tension Between Politics And Security In Germany's Anti-Terrorism Legislation, Shawn Boyne

Cardozo Journal of International and Comparative Law

The article explores Germany's approach to combating terrorism from the late 1960s to the 1980s, emphasizing the interplay between security measures and civil liberties. It argues that political power struggles, rather than the terrorist threat itself, often drove antiterrorism legislation. The analysis highlights how laws such as the Berufsverbot and criminal code revisions were used to suppress dissent, leading to public backlash and eventual reforms. In contrast to the U.S., which framed its post-9/11 response as war, Germany maintained judicial oversight and avoided suspending constitutional rights. Public opinion played a pivotal role in shaping these policies, ultimately fostering a stronger …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington

University of Arkansas at Little Rock Law Review

No abstract provided.

Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …

The Demise Of Corrections Fifteen Years On: Any Hope For Progressive Punishment?, Mark Findlay

Research Collection Yong Pung How School Of Law

A decade and a half ago I wrote an article entitled The Demise of Corrections (Findlay 1988). The central thesis was that penal correctionalism had failed because it was piecemeal and lacked the support of a well developed commitment to alternative strategies to the prison. The criticism is sharper in the current context of imprisonment in NSW where correctional expectations continue to disappoint (and be disappointed), despite a recent revival of interest in 'what works' offender management programmes.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

No abstract provided.

Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells

Cornell Law Faculty Publications

Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.

Criminal Case Complexity: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Criminal case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, attorneys, and judges. This article explores both questions from an empirical perspective with the benefit of recent data from …

Summary Of Bailey V. State, Scott Whittemore

Nevada Supreme Court Summaries

No abstract provided.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Why It Is Essential To Teach About Mental Health Issues In Criminal Law (And A Primer On How To Do It), Richard E. Redding

Working Paper Series

Studies consistently show a high prevalence of mental disorders among criminal defendants. Forensic mental health issues thus arise frequently in the criminal justice system and are commonly encountered by prosecutors, defense attorneys, and judges—much more so than some criminal law doctrines (e.g., necessity, duress, impossibility) routinely taught in criminal law courses. Yet rarely are students taught about mental illness, how to represent mentally ill clients, adjudicative competence, the mental health needs of various offender groups and how these unmet needs may contribute to criminal behavior, or the use of mental health mitigation evidence at sentencing. If taught at all, such …

Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …

Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, a case that invalidated the Washington state sentencing guidelines and cast the validity of the Federal Sentencing Guidelines into grave doubt. On June 27, 2004, Professor Frank Bowman sent a memorandum to the United States Sentencing Commission analyzing the probable impact of Blakely on the federal guidelines and proposing a legislative modification of the Guidelines to render them compliant with Blakely. The proposal relies on the rule of McMillan v. Pennsylvania, 477 U.S. 79 (1986), and Harris v. United States, 536 U.S. 545 (2002), that post-conviction judicial findings …

Endorsing Religion: Drug Courts And The 12-Step Recovery Support Program, Emily M. Gallas

American University Law Review

No abstract provided.

A Process Right Due? Examining Whether A Capital Defendant Has A Due Process Right To A Jury Selection Expert, Steven C. Serio

American University Law Review

No abstract provided.

Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers

Cornell Law Faculty Publications

This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper. The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with …

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.

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Cornell Law Faculty Publications

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to …

The Roadmap For Failure: Israeli And Palestinian Discountenance And Misunderstanding, John J. Marciano

ExpressO

As tensions rise with the assassination of key Hamas figures, the situation in Israel and the Occupied Territories call out for committed, reasoned action. In the past, the peace process has consisted of half-hearted attempts to pacify both the Israeli and Palestinian populaces. This is exemplified by the recent Roadmap for peace, which was supported by the United States.

However, the lack of true dedication among the players has arguably resulted in crimes against humanity on both sides. The previous peace plans fail to recognize this, and have perpetuated the violence with cookie-cutter approaches that are not closely tailored to …