Criminal Law Commons^™

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

Guilty Until Proven Innocent: International Prosecutorial Failure To Disclose Exculpatory Evidence, Michelle Ahronovitz

University of the Pacific Law Review

No abstract provided.

The “Big Brother” Effect: The Implications Of The Unanswered Question In United States V. Jones, Heather Phillips

University of the Pacific Law Review

No abstract provided.

Chapter 636: Catching Those Who Fall, An Affirmative Defense For Human Trafficking Victims, Isabella Blizard

University of the Pacific Law Review

No abstract provided.

Ab 1708: Combating Sex Trafficking By Targeting Prostitution, Hannah Kreuser

University of the Pacific Law Review

No abstract provided.

Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum

Faculty Publications

In dealing with the recently publicized instances of police officers' use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police–the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor's office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor's efforts in presenting evidence for an indictment. Still …

Should Death Be So Different?: Sentencing Purposes And Capital Jury Decisions In An Era Of Smart On Crime Sentencing Reform, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

We are in an era of “Smart on Crime” sentencing reform. Several states and the federal government have made major changes to their sentencing policies—from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today’s reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment—such as retribution, incapacitation, rehabilitation, or deterrence—an undercurrent running through all of these reforms is an effort …

Giving Guidance To The Guidelines, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Throughout the country, we are seeing sentencing reform efforts reshape the way resources are being used to control crime and punish offenders. Fueled mostly by the practical challenges of overcrowded prisons and mounting costs, lawmakers have been willing to amend existing law in order to reduce incarceration for low-level, nonviolent offenders. This same effort at being "smart on crime" has been embraced by the federal government as well. While most of these changes are in the form of changes to mandatory minimum laws, the use of evidence-based sentencing practices, and a focus on diversion and re-entry programs, the role …

Dismissals As Justice, Anna Roberts

Faculty Publications

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

Calling All The Statesmen: The (Not) Mubarak Trial, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

I read the decision that exonerated ex-Minister of Interior of Egypt and his assistants from the charge of giving orders to kill demonstrators textually. Shortcomings known to lawyers and journalists who were following the case about failure of performance on the part either of prosecutors, lawyers, or the judge overseeing the trial are not considered in my reading. You might call it a close reading—specifically, a reading of the rationalizing language used by the judge writing the decision to explain his verdict.

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

Civilizing Criminal Settlements, Russell M. Gold, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

No abstract provided.

Corpus Linguistics And The Criminal Law, Carissa Byrne Hessick

Faculty Publications

This brief response to Ordinary Meaning and Corpus Linguistics, an article by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive theory for criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.

Dna Exonerations And The Elusive Promise Of Criminal Justice Reform, Carissa Byrne Hessick

Faculty Publications

Review of Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Daniel S. Medwed ed., Cambridge University Press 2017).

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Solving The Riddle Of Rape By Deception, Luis E. Chiesa

Journal Articles

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is …

A New International Legal Regime For A New Reality In The War Against Drugs, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper reviews the existing international legal regime on the war against drugs and argues that it has become obsolete in the face of the trend to legalize the consumption of certain drugs, such as marijuana, in developed nations. It particularly analyzes the contradictory practice of the United States to pressure producing states, such as Mexico and Colombia, to enforce the regime and at the same time allow the legalization of consumption in local U.S. states.

Capital Punishment Of Unintentional Felony Murder, Brenner M. Fissell, Guyora Binder, Robert Weisberg

Faculty Publications

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Why Wait So Long: The Cornelius Gurlitt Collection And The Need For Clear Adr Mechanisms In The Restitution Of Looted Art, Samantha Elie

Cardozo Journal of Conflict Resolution

This Note discusses the legal issues surrounding the Gurlitt Collection at each step of the process, and proposes that the mishandling of the collection should spark the need for an international treaty focusing on alternative dispute resolution ("ADR") mechanisms for restituting large troves of looted art. Section II of this Note provides a history of the Gurlitt Collection and the Washington Principals, the non-binding principals currently guiding countries in international restitution. Then, Section III critically examines how the collection has been handled since its discovery in 2012: by the German government, by the media, through ADR mechanisms, and through domestic …

Early Non-Military Intervention To Prevent Atrocity Crimes, Sarah Lesser

Cardozo Journal of Conflict Resolution

This Note explores the possibility of victim-offender mediation or negotiation as a means of early non-military intervention for atrocity crimes, in situations in which indicators from Risk Factor 7 of the U.N. Framework of Analysis are present, and argues that the international community should turn to such forms of mediation and negotiation more often in order to prevent atrocities. Section II provides a brief history of atrocity prevention, and explores other proposals for early warning and non-military intervention. This section also highlights the shortcomings of existing atrocity prevention models. Section III evaluates situations in which victim-offender mediation and negotiation have …

Developing Improved Tactics For Advance Pricing Agreements To Decrease Negotiation Lead Time, Ryan Vines

Cardozo Journal of Conflict Resolution

This Note seeks to investigate the inefficiencies of the Advance Pricing Agreement negotiation process and how inequitable negotiations adversely affect the American taxpaying community, and small and medium sized corporations. The results of this investigation point to the necessity for the IRS to collect data and perform trend analyses. Although marginal improvements have been made by the Advance Pricing and Mutual Agreement ("APMA") Office, the data show that the real issues of Advance Pricing Agreement negotiations have yet to be resolved. The current practices and procedures of a typical Advance Pricing Agreement negotiation does not promote horizontal equity among taxpayers. …

Not Fit To Be Tried: Due Process And Mentally-Incompetent Criminal Defendants, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

A mentally-impaired accused who cannot comprehend the nature of the proceedings or assist his counsel in presenting his defense to the criminal charge cannot be tried as a matter of due process of law. In Jackson v. Indiana, 1 the United States Supreme Court held that due process concerns also bar the never-ending jeopardy resulting from an inability to restore an impaired accused to competence for purposes of proceeding to trial. When an Arkansas circuit court ordered the dismissal of pending criminal charges against an impaired accused who could not be restored to fitness for trial, the Arkansas Supreme Court, …

Constitutional Law—Fourth Amendment Search And Seizure—We've Got Ourselves In A Pickle: The Supreme Court Of Arkansas's Recent Expansion Of Fourht Amendment Rights May Have Unintended Consequences. Pickle V. State, 2015 Ark. 286, 466 S.W. 3d 410, Ben Honaker

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Law—When Apples Tatse Like Oranges, You Cannot Judge A Book By Its Cover: How To Fight Emerging Synthetic "Designer" Drugs Of Abuse, Andrew Payne Norwood

University of Arkansas at Little Rock Law Review

No abstract provided.

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

University of Colorado Law Review

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ's concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Colorado's About Face: Mechanics, Progress, And Challenges Facing Veterans Trauma Courts In Colorado, Karthik A. Venkatraj

University of Colorado Law Review

The nature of asymmetrical warfare-defined by improvised explosive devices, indirect fire attacks, and suicide attackshas significantly altered the patterns of post-service challenges faced by veterans. Dealing with the unseen wounds of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) that result from this type of combat has been one of the most difficult leadership challenges of my career as a young officer.

Although our nation's medical response to PTSD and TBI is well documented, the judicial challenges are not as apparent. Most recently, our nation has responded to this challenge with an alternative court, the Veterans Trauma Court (VTC), …

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

Bargained-For-Justice: Lessons From The Italians?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Faculty Scholarship

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …