Criminal Law Commons^™

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

Universal Jurisdiction: A Means To End Impunity Or A Threat To Friendly International Relations?, Karinne Lantz

Articles, Book Chapters, & Popular Press

Ending impunity for perpetrators of serious international crimes such as genocide, crimes against humanity, and war crimes is considered important because convictions may achieve justice and deter future acts. A controversial tool for ending impunity is the exercise of universal jurisdiction by states. For its supporters, universal jurisdiction denies safe havens for perpetrators of heinous offenses and ensures that their crimes do not go unpunished due to a lack of will or means. In contrast, critics warn that universal jurisdiction threatens international relations, international justice, and the rights of the accused.

The recent resistance of the African Union to attempted …

Film Review: Mississippi Innocence And The Prosecutor’S Guilt, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Film review of Mississippi Innocence. A documentary film by Joe York. Media and Documentary Projects at the University of Mississippi (2011)

Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks

Faculty Scholarship

No abstract provided.

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …

Professional Identity As Advocacy, Robert Rubinson

All Faculty Scholarship

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of "professional identity as advocacy" describes how such professional sub-groups accuse opposing subgroups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

In-House Counsel Beware!, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …

Par In Parem Imperium Non Habet, Beth Van Schaack

Faculty Publications

The principle of complementarity undergirds the International Criminal Court’s admissibility regime. And yet, in the negotiations leading up to the 2010 Review Conference in Kampala, Uganda, delegates did not fully focus on the potential for the addition of the crime of aggression to destabilize the Court’s complementarity regime. The only guidance from the ASP came in the form of two interpretive Understandings that express a subtle preference that States Parties not incorporate the crime into their domestic codes. If States Parties heed this call - which they should - the Court will inevitably be faced with situations in which there …

Regulating The Sex Trade, John Avery

Student Works

No abstract provided.

Killing For Possession And Killing For Survival: Gender And The Criminal Law Of Provocation And Self-Defense, Danielle Rosiejka

Student Works

No abstract provided.

Not The New Pornographers: Protecting Sexting Teens From Overzealous Prosecutors And Themselves, Jenna R. Minor

Student Works

No abstract provided.

Lifetime Banishment For Selling A Few Joints: The Case For The Modified Categorical Approach And Prosecutorial Discretion For Marijuana Sale Convictions In The Immigration Context, Jacqueline Stabnow

Student Works

No abstract provided.

Tormented: Antigay Bullying In Schools, Ari Ezra Waldman

Articles & Chapters

This Article begins a theoretical and empirical discussion on bullying and cyberharassment of all students, but particularly gay and lesbian youth. Despite the recent spate of bullying-related suicides, I argue that antibullying proposals that include harsh criminal punishments for egregious cases of bullying and cyberbullying in schools lack validity as a matter of legal theory and practice. In fact, it is what makes criminalization so initially attractive — that is, the public’s emotional and retributive need for punishments equal to bullying tragedies — that ultimately leaves the proposal devoid of reason. Criminalization proposals only satisfy retributive aims and are unlikely …

Medical Marijuana And The Political Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Medical marijuana has emerged as one of the key federalism battlegrounds of the last two decades. Since 1996, sixteen states have passed new laws legalizing the drug for certain medical purposes.' All the while, the federal government has remained committed to zero-tolerance, prohibiting the possession, cultivation, and distribution of marijuana for any purpose.2 The federal government's uncompromising stance against medical marijuana seemingly exposes the states' vulnerability to the whims of the national political process, and it has inspired calls for the courts to step in and protect state experimentation from this and other instances of arguable congressional over-reaching.

Why Crime Severity Analysis Is Not Reasonable: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place. In pursuit of this objective, his article provides the best attempt to date at dealing with the difficult issue of separating serious from not-so serious crimes (he ends up with three categories—grave, serious and minor. He then makes the enticing argument that calibrating the degree of Fourth Amendment protection according …

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.

Enforcing Integrity, Katrice Bridges Copeland

Faculty Scholarship

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those …

Kiss The Ring, But Never Touch The Crown: How U.S. Policy Denies Indian Women Bodily Autonomy And The Save Native Women Act's Attempt To Reverse That Policy, Hossein Dabiri

American Indian Law Review

No abstract provided.

Crimes Of Misery And Theories Of Punishment, John B. Mitchell

Faculty Articles

Increasingly, one sees the homeless on the streets, alleys, and doorways of commercial, recreational, and living spaces of our cities otherwise populated by the affluent and relatively affluent. At the same time, there has been an increase in the creation and use of so-called “public order laws,” such as forbidding sitting on sidewalks, lying down on benches, and panhandling in certain tourist areas. Together with laws already on the books forbidding public intoxication, open containers of liquor in public and urinating in public, this suite of laws provide police with a means to control the day-to-day lives of the homeless …

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant

All Faculty Publications

An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner …

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge

All Faculty Publications

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of …

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant

All Faculty Publications

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be …

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to …

Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward

All Faculty Publications

In the mid-1990s, section 718.2(e) of the Criminal Code of Canada was enacted in response to the alarming over-representation of Aboriginal people in Canada’s prisons and jails. Its admonition to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders” requires, according to the Supreme Court in the leading case of R v Gladue, that justice system participants do things differently in sentencing Aboriginal people. However, in the ensuing years the level of over-representation has got worse, rather than better. There are a number of different explanations that …

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart

All Faculty Publications

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms …

Overdetermined Atrocities, James G. Stewart

All Faculty Publications

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsible for the death — none made, either directly or through others, an essential contribution to its occurrence. In many respects, this dilemma is the …

Exonerations In The United States, 1989-2012: Report By The National Registry Of Exonerations, Samuel R. Gross, Michael Shaffer

Other Publications

This report is about 873 exonerations in the United States, from January 1989 through February 2012. Behind each is a story, and almost all are tragedies. The tragedies are not limited to the exonerated defendants themselves, or to their families and friends. In most cases they were convicted of vicious crimes in which other innocent victims were killed or brutalized. Many of the victims who survived were traumatized all over again, years later, when they learned that the criminal who had attacked them had not been caught and punished after all, and that they themselves may have played a role …

Torture And The War On Terror: The Need For Consistent Definitions And Legal Remedies, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Intentional Discrimination In Farrakhan V. Gregoire: The Ninth Circuit's Voting Rights Act Standard "Results In" The New Jim Crow, Jonathan Sgro

Villanova Law Review (1956 - )

No abstract provided.