Criminal Law Commons^™

Clearly Amorphous: Finding A Particular Social Group For Children Resisting Gang Recruitment, Adreanna Orlang

Catholic University Law Review

No abstract provided.

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

Frye And Lafler: No Big Deal, Gerard E. Lynch

Faculty Scholarship

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …

Systemic Racial Bias And Rico's Application To Criminal Street And Prison Gangs, Jordan Blair Woods

Michigan Journal of Race and Law

This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the prosecuted White-affiliated gangs fell into three categories: international organized crime groups, outlaw motorcycle gangs, and White supremacist prison gangs. Some scholars and practitioners would explain these findings by contending that most criminal street gangs are comprised of racial minorities. This Article challenges and problematizes this …

I Want My (Immigration) Lawyer! The Necessity Of Court-Appointed Immigration Counsel In Criminal Prosecutions After Padilla V. Kentucky, Scott R. Grubman

Nevada Law Journal

No abstract provided.

Painting Ourselves Into A Corner: The Fundamental Paradoxes Of Modern Warfare In Al Maqaleh V. Gates, Ashley C. Nikkel

Nevada Law Journal

No abstract provided.

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz

Faculty Scholarship

These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions – between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Faculty Scholarship

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …

Preplea Disclosure Of Impeachment Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Response to R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429 (2011)

Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala

University of Michigan Journal of Law Reform Caveat

One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …

Shaken Baby Syndrome As Felony Murder In North Carolina, Derick R. Vollrath

Campbell Law Review

This Article argues that the North Carolina criminal law’s treatment of Shaken Baby Syndrome should be reformed. Rather than leaving in place a legal regime that allows the state to prosecute all Shaken Baby Syndrome cases as first-degree murder, the law should distinguish between accidental and purposeful killings. If the state wishes to punish Shaken Baby Syndrome cases with special severity, the General Assembly should make this policy choice explicit. In making this argument, this Article proceeds in three parts. First, this Article examines how and why North Carolina subjects all Shaken Baby Syndrome deaths to prosecution as first-degree murder. …

No Way To Treat Man's Best Friends: The Uncounted Injuries Of Animal Cruielty Victims, Samantha D. E. Tucker

Animal Law Review

As society has come to recognize the sentience and intelligence of nonhuman animals, jurisdictions across the United States (U.S.) have promulgated animal protection laws. Despite the development of anti-cruelty statutes, though, states with sentence enhancement mechanisms continue to elevate criminal offenders’ sentences only if they injure human victims. This Note considers the development of anti-cruelty laws and explores how sentencing guidelines, victim injury points, and other sentence enhancement mechanisms function in U.S. criminal justice systems. It examines how multiple states treat victim injury, focusing particularly on Florida where, in October 2011, a Florida Assistant State Attorney—in what was likely the …

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Mary’S Friend, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 10-13

Brass Rings And Red-Headed Stepchildren: Protecting Active Criminal Informants, Michael L. Rich

American University Law Review

No abstract provided.

Administering Justice: Removing Statutory Barriers To Reentry, Joy Radice

University of Colorado Law Review

No abstract provided.

When Does Restitution Become Retribution?, Melanie M. Reid, Curtis L. Collier

Oklahoma Law Review

No abstract provided.

Straying From The Written Path: How The Supreme Court Eviscerated The Plain Meaning Of The Mvra’S Ninety-Day Deadline Provision And Legislated From The Bench In Dolan V. United States, Alexander J. Sisemore

Oklahoma Law Review

No abstract provided.

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

All Faculty Scholarship

The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

Superheroes, Bandits, And Cyber-Nerds: Exploring The History And Contemporary Development Of The Vigilante, Stephanie Juliano

Scholarly Works

This article will first discuss what defines a vigilante, the history of vigilantes, and the contemporary vigilante's effect on the legal system as a whole. Also, this article will focus on those scenarios that bring an ordinary person to react in an illegal way to a perceived injustice. In focusing on these scenarios, this article will examine a little more closely the answers of deeper questions about the nature of law and justice, and their roles in the accelerating world of new media.

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Sheila’S Dilemma, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 14-18

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Carol’S Question, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on sexual minority youth

Sexual Assault Cases In The Supreme Court Of Canada: Losing Sight Of Substantive Equality?, Emma Cunliffe

All Faculty Publications

The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This article considers the effectiveness of these reforms. Part 2 supplies a history of the relationships between consent, trial procedure, and substantive equality in sexual assault law. The author argues that substantive equality has had a significant effect on both substance and procedure. Part 3 examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, the …

The Delinquent “Toddler”, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

Twenty-first century juvenile justice jurisprudence has focused on the criminal responsibility of adolescents, including, notably, the interface between psychological and neurological development and social accountability. The focus has led to a growing awareness that teenagers should not be equated with or held as accountable as adults. For example, several states, including Connecticut, Illinois, and Mississippi, have raised the age of criminal responsibility from 16 or 17 to 18, with a corresponding expansion of juvenile court jurisdiction. Of potentially greater significance, the principle of diminished criminal responsibility has gained credibility. Witness, for example, the US Supreme Court holding that capital punishment …

The Paradox Of Statutory Rape, Russell Christopher, Kathryn Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Comptetency To Execute: Unjustified Forcible Medication Regimes And The Insanity Defense, Ajay Gogna

Student Works

No abstract provided.

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Florida's Disregard Of Due Process Rights For Nearly A Decade: Treating Drug Possession As A Strict Liability Crime, Rachel A. Lyons

St. Thomas Law Review

This Article examines the United States Supreme Court's jurisprudence that constitutionally compels an analysis under the Due Process Clause for strict liability crimes, and how the Florida Legislature overstepped its due process limitations when it amended Florida's Drug Abuse Prevention and Control Law in 2002. Part I traces the evolution of mens rea in the criminal justice system. Part II provides a history of Florida's Drug Abuse Prevention and Control Law. Part III discusses the recent constitutional challenges to Florida's Drug Abuse Prevention and Control Law. Part IV explains why the United States Supreme Court cases addressing strict liability crimes …