Criminal Law Commons^™

State Taxation Of Marijuana Distribution And Other Federal Crimes, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The financial crisis has breathed new life into proposals to reform marijuana law. Commentators suggest that legalizing and taxing marijuana could generate substantial revenues for beleaguered state governments-as much as $1.4 billion for California alone. This Article, however, suggests that commentators have grossly underestimated the difficulty of collecting a tax on a drug that remains illegal under federal law. The federal ban on marijuana will impair state tax collections for two reasons. First, by giving marijuana distributors powerful incentives to stay small and operate underground, the federal ban will make it difficult for states to monitor marijuana distribution and, consequently, …

Citizens United & Corporate & Human Crime, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …

The Complementarity Conundrum: Are We Watching Evolution Or Evisceration?, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Rome Statute nowhere defines the term "complementarity, " but the plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The practice of complementarity may well be the fulcrum supporting the Court's long term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Party towards treaty accession. The Rome Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and it includes detailed procedural …

The Case Of The Black-Gloved Rapist: Defining The Public Defender's Role In The California Courts, 1913-1948, Sara Mayeux

Vanderbilt Law School Faculty Publications

This essay traces [these] two competing visions of the public defender in California from 1913 to 1948, and examines how and why the second view ultimately prevailed, at least doctrinally. On the ground, some public defenders may have continued to see themselves primarily as public servants, and some trial judges may have endorsed this view. But in the 1940s, California appellate judges rejected the Progressive ideal of the public defender. They constructed the public defender as an opponent of the state, leaving intact (at least in theory) the American adversary system of criminal justice.

In so doing, they followed the …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Scholarship@WashULaw

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community. Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Constructing Systemic Safeguards Against Informant Perjury, Peter A. Joy

Scholarship@WashULaw

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is …

The Role Of The Family In Criminal Law, Gerard V. Bradley

Journal Articles

Privilege or Punish: Criminal Justice and the Challenge of Family Ties. Dan Markel, Jennifer M. Collins & Ethan J. Leib. Oxford University Press, 2009.

The authors of Privilege or Punish (PoP) pose two questions, one descriptive and the other morally evaluative. "First, how does the criminal justice system in this country approach the issue of family status? Second, how should family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of nondiscrimination?"

The Order-Maintenance Agenda As Land Use Policy, Nicole Stelle Garnett

Journal Articles

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

Intimate Femicide: A Study Of Sentencing Trends For Men Who Kill Their Intimate Partners, Isabel Grant

All Faculty Publications

This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that periods of parole ineligibility for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, changing social attitudes and the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor have resulted in increasingly severe sentences for spousal manslaughters. While a large number …

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

All Faculty Publications

Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

What Does Graham Mean In Michigan?, Kimberly A. Thomas

Articles

In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.

Crimes On The Gulf, David M. Uhlmann

Articles

The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”

Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien

Articles

The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors

Defending Juveniles Facing Life Without Parole In Michigan, Kimberly A. Thomas

Articles

In Graham v. Florida, the United State Supreme Court held that life without parole could not be imposed on a juvenile offender for a non-homicide crime. This article discusses the challenges, under the Eighth Amendment and the Michigan Constitution, to the sentence of life without parole imposed on someone 17 years old or less.

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

The Autobiography Of An Execution By David Dow, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Balancing Liberty, Dignity And Safety: The Impact Of Domestic Violence Lethality Screening, Margaret E. Johnson

All Faculty Scholarship

This Article undertakes the first ever analysis of the consequences of the justice and legal system’s extensive use of lethality assessment tools for women subjected to abuse. An increasing number of states are now requiring their police, prosecutors, civil attorneys, advocates, service providers, and court personnel to assess women in order to obtain a score that indicates the woman’s lethality risk because of domestic violence. The mandated danger assessment screen of all women subjected to violence focuses only on the risk of homicide and thereby limits the definition of what is domestic violence. In addition, the accompanying protocol for the …

Security Council Resolution 1820: An Imperfect But Necessary Resolution To Protect Civilians From Rape In War Zones, Melissa Goldenberg Goldstoff

Cardozo Journal of Equal Rights & Social Justice

The note examines the significance and limitations of UN Security Council Resolution 1820, which recognizes rape as a war crime and a threat to international security. While the Resolution is a crucial step forward in protecting women during armed conflicts, it is argued to be imperfect due to its incomplete implementation mechanisms and potential to undermine earlier resolutions like Resolution 1325, which emphasizes women's roles in peace-building.

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

The Case For Criminalising Primary Infringements Of Copyright – Perspectives From Singapore, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Hitherto, criminal liability only attached to, inter alia, the commercial manufacture, importation, distribution and sale of infringing copies of copyright material.1 In the noncommercial context, it was also a criminal offence to distribute infringing materials that had a prejudicial impact on the copyright owner.2 The defendant therefore could not be subject to criminal prosecution for infringing acts that were not motivated by profit or that did not involve “prejudicial” distribution. Only civil liability attached to copyright infringements for what may be loosely termed “non-commercial” purposes. All this, of course, changed when the United States–Singapore Free Trade Agreement (USSFTA) was concluded …

Innocence Commissions And The Future Of Post-Conviction Review, David Wolitz

Georgetown Law Faculty Publications and Other Works

In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Why Care About Mass Incarceration?, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences—including being prosecuted for a crime himself—eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Publications

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.