Criminal Law Commons^™

Suspicionless Laptop Searches Under The Border Search Doctrine: The Fourth Amendment Exception That Swallows Your Laptop, Ari B. Fontecchio

Cardozo Law Review

No abstract provided.

Mtic Fraud Infects Tradable Carbon Permits, Richard Thompson Ainsworth

Faculty Scholarship

Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June …

Attempt, Conspiracy, And Incitement To Commit Genocide, Jens David Ohlin

Cornell Law Faculty Publications

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a …

Modes Of Discretion In The Criminal Justice System, Roger Fairfax

Presentations

No abstract provided.

Participatory Evaluation Of The Tribal Victim Assistance Programs At The Lummi Nation And Passamaquoddy Tribe, Ada Pecos Melton, Michelle Chino

School of Public Health Faculty Research

The high rate of crime in American Indian/Alaska Native (AI/AN) communities and/or against AI/AN people reflected in numerous studies in the last three decades, demonstrates the need for victim assistance programs in Indian Country to help victims cope with and heal from violent crime (Wolk 1982; Allen 1985; Sacred Shawl Women’s Society, no date; McIntire 1988; DeBruyn, Lujan & May 1995; Norton & Manson 1995; Fairchild et. al 1998; Greenfield & Smith 1999; Alba, Zieseniss, et al 2003; Perry 2004). The U.S. Department of Justice, Office for Victims of Crime (OVC) became aware of the lack of resources available to …

Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman

Faculty Publications

I want to tell you the story of how I've come to see a woman I call Eva. It's more than just Eva's story, which is interesting in itself; it's also my story, puny like a pinky.

The story starts on a frigid February morning in 1992, when my friend Jack, a criminal defense lawyer with a solo-practice in downtown Chicago, called to talk with me about his sixteen-year-old client, Eva, who had hidden her pregnancy from her family and then given birth in a toilet. Her case was going to trial. He had never heard a story like hers. …

Summary Of Funderburk V. State, 125 Nev. Adv. Op. No. 25, James Conway

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, upon a jury verdict, of two counts of burglary while in possession of a deadly weapon, two counts of conspiracy to commit robbery, and four counts of robbery with use of a deadly weapon.

Summary Of Mcconnell V. State, 125 Nev. Adv. Op. No. 24, Ian Houston

Nevada Supreme Court Summaries

Appeal from an order of the district court dismissing appellant’s post-conviction petition for a writ of habeas corpus in a death penalty case.

Thug Life: Hip Hop’S Curious Relationship With Criminal Justice, André Douglas Pond Cummings

Law Faculty Scholarship

I argue that hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States. At base, hip hop lyrics and their cultural accoutrements turns U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment. Prison and punishment philosophy in the U.S. is based on clear principles of retribution and incapacitation, where prison time for crime should serve to deter individuals from engaging in criminal behavior. In addition, the stigma that attaches to imprisonment should dissuade criminals from recidivism. Hip hop culture denounces crime and punishment in the …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Scholarly Works

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Peeking In Cyberspace's Backdoor, James Stribopoulos

Editorials and Commentaries

No abstract provided.

Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds

Cornell Law Faculty Publications

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical …

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another self." Forgiving, the …

The Future For Collected Prosecutorial Evidence At The International Criminal Tribunal For Rwanda, Gerda Visser

Cardozo Public Law, Policy & Ethics Journal

The article focuses on the International Criminal Tribunal for Rwanda (ICTR) and its Office of the Prosecutor (OTP), emphasizing the need to balance the preservation of sensitive information with the public's right to access historical records. It highlights the ICTR's role in developing international criminal law standards and the challenges of managing its vast archive, particularly regarding witness protection, privacy, and future prosecutions. The article proposes establishing an international judicial archive with a legal reviewing body to oversee access to the OTP database, ensuring transparency while safeguarding sensitive data.

The Price Of Pictures, Lucille A. Roussin

Cardozo Public Law, Policy & Ethics Journal

The article explores the significant increase in the value of art since World War II, highlighting the evolution of the art market and the complexities surrounding the restitution of looted artworks. It examines the growth of the art market through specific examples, such as the sales of high-value paintings, and discusses the legal and emotional challenges of recovering artworks stolen during the Holocaust.

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

Throwing The Baby Out With The Bathwater: A Call To Reinstate The Public Housing Drug Elimination Program, Wendy Tolson Ross

Faculty Works

In fiscal year 2002, the federal government, upon recommendation by the Office of Management and Budget, eliminated funding to the Public Housing Drug Elimination Program (PHDEP), a grant program designed to assist public housing authorities in fighting drugs and crime. In explaining its decision, the government cited (1) the program’s ineffectiveness, (2) its duplication of activities, and (3) the availability of other enforcement tools (e.g., evictions) to control crime and drugs in public housing. On the surface, the budgetary concerns appear to be sound. However, today, seven years later, crime and drug violence are still causing problems in public housing …

Joint Criminal Confusion, Jens David Ohlin

Cornell Law Faculty Publications

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …

Collateral Damage? Juvenile Snitches In America’S 'Wars' On Drugs, Crime And Gangs, Andrea L. Dennis

Scholarly Works

The government’s use of children as informants in America’s 'wars' on drugs, crime, and gangs is little recognized and rarely discussed by scholars, policymakers, and the public. As with many governmental practices, only notorious instances make headlines, such as when a child is killed in retaliation for informing. Because public attention rarely is focused on the practice, it has not generated consistent documentation of, regulation of, or accountability for such use of child informants. As a starting point for discussion, this article illuminates the experiences of child informants, describing a facet of the snitching institution that generally operates under the …

Back To A Future: Reversing Keith Simpson's Death Sentence And Making Peace With The Victim's Family Through Post-Conviction Investigation, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

In 1993, Keith Simpson was arrested for the murder of Joe Harrison; in 2006, he was sentenced to life with the possibility of parole in 2022. Between those two events, Simpson was sentenced to death, had his death sentence vacated by the post-conviction relief court, reached a plea agreement with the victim's family and the new Solicitor, saw the agreement invalidated when the Attorney General's office overrode the family and the Solicitor by appealing the post-conviction court's decision, lost the lower court's decision to an appellate reversal, and won a cross-appeal for a new trial. You just never know. You …

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

All Faculty Scholarship

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Summary Of Ramet V. State, 125 Nev. Adv. Op. No. 19, Tara C. Zimmerman

Nevada Supreme Court Summaries

Appellant Daniel Anthony Ramet was convicted of first-degree murder. On appeal, Ramet contended that the testimony concerning his refusal to consent to a search of his home, taken together with the prosecutor’s comment on it, was violative of his Fourth Amendment rights. The Court concluded that the district court erred in allowing testimony and argument regarding Ramet’s invocation of his Fourth Amendment right. However, they further concluded that the error in admitting the statements was harmless. The Court therefore affirmed Ramet’s conviction.Óÿ

Padilla V. Kentucky: Brief For Legal Ethics, Criminal Procedure, And Criminal Law Professors As Amici Curiae In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici curiae legal ethics, criminal procedure, and criminal law professors are 37 law professors who teach, research, and write about criminal law, criminal procedure, or legal ethics, including their intersection. The names, titles, and institutional affiliations (for identification purposes only) of these amici are listed in Appendix A. Some amici work as clinical professors, in which capacity they regularly counsel and advise clients in criminal matters and train attorneys on how to effectively represent such clients. Amici have a professional interest in this Court's consideration of the doctrinal, historical, and policy issues involved in this Court's interpretation of the Sixth …

Optimal Hackback, Jay P. Kesan, Ruperto Majuca

Chicago-Kent Law Review

Professor Jay Kesan from the University of Illinois College of Law, in joint work with Ruperto Majuca of the University of Illinois Department of Economics, argue in favor of legal rules that allow "hacking [data] back" in certain business circumstances. They analyze the strategic interaction between the hacker and the attacked company or individual and conclude that neither total prohibition nor unrestrained permission of hack-back is optimal. Instead, they argue that when other alternatives such as criminal enforcement and litigation are ineffective, self-defense is the best response to cybercrime because there is a high likelihood of correctly attacking the criminal, …

An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar

Michigan Law Review

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …

Heinous, Atrocious, And Cruel: Apprendi, Indeterminate Sentencing, And The Meaning Of Punishment, W. David Ball

Faculty Publications

Under Apprendi v. New Jersey, any fact that increases an offender's maximum punishment must be found by a jury beyond a reasonable doubt. The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences-that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.

In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In …

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …

Bowen V. Oregon: Brief Of Jeffrey Abramson, Caroline L. Davidson, Shari S. Diamond, Theodore Eisenberg, Phoebe C. Ellsworth, Samuel R. Gross, Valerie P. Hans, Stephen Kanter, Norbert L. Kerr, Stephan Landsman, Robert J. Maccoun, Susan F. Mandiberg, Margaret L. Paris, Jeffrey J. Rachlinski, Mary R. Rose, Michael J. Saks, And Neil Vidmar As Amici Curae In Support Of Petitioner, Phoebe C. Ellsworth

Appellate Briefs

Amici are university professors whose teaching and scholarship have addressed historical, behavioral, and constitutional questions about jury unanimity. Amici are identified in the Appendix.

In Apodaca v. Oregon, 406 U.S. 404 (1972), and its companion case, Johnson v. Louisiana, 406 U.S. 356 (1972), a fractured Court concluded that the Sixth and Fourteenth Amendments did not mandate the traditional requirement of unanimity for criminal jury trials in state courts. The Court recognized that unanimity had been a requirement of common-law juries for hundreds of years, but a plurality considered that historical background unimportant. Instead, the plurality relied on a …

Torture And The Tablets Of Eternity, Donald E. Wilkes Jr.

Popular Media

The question is whether there should be investigation, prosecution and punishment of those in the Bush administration who authorized or directed torture of prisoners, or who did the actual torturing.

Summary Of Hannon V. State, 125 Nev. Adv. Op. No. 15, Shannon Rowe

Nevada Supreme Court Summaries

The Court took this opportunity to align Nevada’s standard for emergency home entries with the recent Supreme Court opinion in Brigham City v. Stuart.2 The Supreme Court held in that case that for a warrantless entry to be lawful there must be an objectively reasonable basis to believe that a party inside is in danger.3 Accepting this standard eliminates Nevada’s previous test, which allowed courts to look at the law enforcement agent’s lack of intent to arrest or search.