Criminal Law Commons^™

U.S. Supreme Court Decisions And Sex Offender Legislation: Evidence Of Evidence-Based Policy?, Christina Mancini, Daniel P. Mears

Journal of Criminal Law and Criminology

No abstract provided.

Nudging The Justice System Toward Better Decisions, Edie Greene, Brian H. Bornstein

Journal of Criminal Law and Criminology

No abstract provided.

The Iron Curtain: Alabama's Practice Of Excluding Inmates From Parole Release Hearings And Its Flawed Underpinnings, Erin Lange Ramamurthy

Journal of Criminal Law and Criminology

No abstract provided.

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Faculty Scholarship

In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …

Sex Trafficking: The Influence Of Cultures, Socio-Economic Structures And Law & Order On Sex Trade In Asia, Saanya Dua

Political Science Theses and Capstones

Sex trafficking and prostitution are both matters of concern in today’s world. Trafficking of human beings is a global phenomenon and has been a topic of increased discussion and attention. It is believed that the sex trade industry is considered to be the fastest growing criminal industry in the world, currently it is second to drug trafficking in terms of profits through an illegal industry. Several initiatives have been made to prevent trafficking, through significant legislative and other actions provided to aid victims and those vulnerable in the world. However, the lack of systematic research is a big issue. Asia …

The International Criminal Court Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in achieving its objectives of deterrence, retribution, and ending impunity, primarily due to slow procedures, lack of state cooperation, and perceptions of bias. While the ICC has made qualitative contributions to international criminal law, its effectiveness is undermined by procedural inefficiencies, political interference, and limited enforcement mechanisms. The court's reliance on the complementarity principle and state cooperation highlights the tension between its judicial and political roles, with its future success contingent on addressing these systemic issues.

Illuminating Corruption Pathways: Modifying The Fcpa's "Grease Payment" Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Cardozo Journal of International and Comparative Law

The article argues that the Foreign Corrupt Practices Act (FCPA) should be modified to require companies to report "grease payments," small bribes intended to expedite routine government actions. This change aims to enhance transparency, align U.S. law with stricter international standards, and combat corruption more effectively. The proposal suggests that mandating disclosure of such payments to the Department of Justice (DOJ), which would then publish the information online, would help activists, journalists, and foreign governments identify and address corruption. While the article acknowledges potential challenges, such as companies circumventing reporting or facing reputational risks, it emphasizes the long-term benefits of …

American Criminal Procedure In A European Context, Mar Jimeno-Bulnes

Cardozo Journal of International and Comparative Law

The article examines the historical and contemporary distinctions between the accusatorial and inquisitorial criminal justice systems, tracing their evolution from common law and civil law traditions. It highlights the increasing convergence of these models, particularly the influence of the U.S. adversarial system on European procedures, while critiquing the practical challenges and inefficiencies of both systems. The analysis emphasizes the tension between procedural fairness and efficiency, urging reforms to address these issues.

The Credit Industry And Identity Theft: How To End An Enabling Relationship, Eric T. Glynn

Buffalo Law Review

No abstract provided.

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

Scholarly Works

In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Mass Incarceration At Sentencing, Anne R. Traum

Scholarly Works

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales-individual, family, and community-and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is …

Patent Infringement As Criminal Conduct, Jacob S. Sherkow

Articles & Chapters

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …

Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh

Articles

This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …

Proceedings Of The Seventh International Humanitarian Law Dialogs, Recent Developments In International Criminal Law: 2012–2013, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl’s keynote address on August 27, 2013 at the Seventh International Humanitarian Law Dialogs held in Chautauqua, New York.

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Prosecutor V. Perišić, Case No. It-04-81-A, International Criminal Tribunal For The Former Yugoslavia, Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Getting Beyond Intuition In The Probable Cause Inquiry, Erica R. Goldberg

Faculty Scholarship

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability …

Is Stricter Gun Sentencing The Solution To Chicago's Rising Murder Rate? , Marjorie Kennedy

Public Interest Law Reporter

No abstract provided.

A Latina Law Professor's Personal Perspective After The Zimmerman Trial Verdict, Maritza I. Reyes

Journal Publications

No abstract provided.

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber

Publications

No abstract provided.

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Publications

In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and …

Five Answers And Three Questions After United States V. Jones (2012), The Fourth Amendment Gps Case, Benjamin Priester

Journal Publications

Each year, the United States Supreme Court's docket includes a range of "high profile" cases that attract attention not merely from law professors and others with an acquired fascination with the Court, but also from a general audience of law students, lawyers, scholars and commentators on American politics and society, as well as, occasionally, the public at large. During the 2011 Term, one of those cases was "the GPS case," formally known as United States v. Jones.' Media coverage of the case spread far beyond the legal blogosphere to a wide variety of mainstream and popular sources, both in print …

Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

Children Of Polyamorous Families: A First Empirical Look, Mark Goldfeder, Elisabeth Sheff

Scholarly Works

No abstract provided.

[Including But Not Limited To] Violence Against Women, Giovanna Shay

Faculty Scholarship

This Article highlights three developments in criminal justice in 2012 that marked the move toward more gender-inclusive anti-violence movements: the FBI’s adoption of a gender-neutral definition of rape; the debate regarding the reauthorization of the Violence Against Women Act (VAWA); and the promulgation of new Department of Justice (DOJ) regulations under the Prison Rape Elimination Act of 2003 (PREA). These recent developments reveal a growing movement towards more gender-inclusive conceptions of rape and intimate partner violence. The change to a more gender-inclusive approach will have many implications for criminal justice policy and institutions. One critical project is to ensure that …

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …